Chamber of Regions

      14th PLENARY SESSION
      CPR(14)6REPADD

      15 May 2007

      Study on the current situation concerning regionalisation and the prospects for developing regional self-government in Council of Europe member states

      Jean-Claude Van Cauwenberghe, Belgium, (R, SOC)

      Report
      Institutional Committee

      R : Chamber of Regions / L : Chamber of Local Authorities
      ILDG : Independent and Liberal Democrat Group of the Congress
      EPP/CD : Group European People’s Party – Christian Democrats of the Congress
      SOC : Socialist Group of the Congress
      NR : Member not belonging to a Political Group of the Congress

      Summary

      1. The aim of the Congress of Local and Regional Authorities of the Council of Europe (Congress), as confirmed by the 3rd Summit of the Council of Europe (CoE), held in Warsaw in 2005, is to protect, promote and develop local and regional democracy in the Organisation’s member states.

      2. Examination of how regional democracy has developed in a number of member states since 2000 gives rise to the following observations: in almost all Council of Europe member states, far-reaching reforms of regional authorities have been completed, are in progress or are planned for the years ahead. These reforms involve federal states, highly decentralised states with a considerable degree of regional self-government, decentralised states and states in the process of regionalising their systems of government. The following are just a few examples.

      3. Federal states have undertaken major reforms. Switzerland reorganised financial arrangements between the cantons and the Federation in 2005, which will enter into force 2008. Germany completely restructured the codecision rights of the Federal Council and the allocation of competencies between federation and Länder in 2006, and is embarking on the second stage of its reform of financial arrangements between the Federation and the Länder. Belgium has initiated a wide-ranging debate on the possibility of taking the federalisation process further. A 2001 Act transferred additional federal powers and responsibilities to the regions.

      4. Highly decentralised states such as Spain are carrying out far-reaching reforms of regional authorities and redefining the relationship between central and regional government.

      5. Fairly centralised states are also seeing significant reforms. France has started implementing the decentralisation programme approved in 2003. The United Kingdom is consolidating its devolution reforms and refining the distribution of powers and responsibilities between London and Scotland, and London and Wales. Sweden and Denmark have begun rationalising the local/regional government map by creating larger units in a drive for efficiency.

      6. East European countries – both new European Union members and those in the process of accession – are significantly restructuring their regional tiers so as to enhance their ability to implement common policies, particularly EU structural policy.

      7. In other Council of Europe member countries organisation of the regional level is still on the agenda. The Croatian government has set up a committee to draw up a plan for decentralisation of powers, responsibilities and financial resources. Norway intends presenting a white paper in October 2006 on the distribution of powers among the different tiers of government.

      8. Most of these regionalisation processes have been successful, although systematic evaluation of the reforms is unusual. There have also been failures and unfortunate repercussions, however. A plan to introduce elected regional assemblies in England was rejected by referendum in autumn 2004. In Italy, a reform plan that, inter alia, redistributed powers between central government and the regions was also rejected by referendum in June 2006.

      9. As a rule, member states regard their internal territorial structure – and thus decisions on sharing power among tiers of government, the extent of such redistribution and the prerequisites for it – as strictly national matters. A number of developments have taken place, however – especially under European Union (European Community) law – that affect the scope and nature of regional development in European countries.

      National aspects:

      10. Generally speaking, the scope of national reforms is fairly extensive. They usually involve a number of pillars of the system of government: the constitution or institutional laws, central and regional (or local) government, distribution of tax revenue and public finance, co-operation arrangements between tiers of government in national or European matters and, in some cases, inter-regional or cross-border co-operation.

      ___________________________________

      The Rapporteur wishes to thank the consultant, Mr Bernd Semmelroggen, who provided excellent work in the preparation of this report.

      11. There are a number of forces driving reform – domestic pressures and external influences overlap. Politics, the economy, the system of government itself, a section of civil society, the media and researchers are the main locomotives of reform.

      European aspects:

      12. Through their policies and the resulting legal rules, the European Community and Council of Europe influence the development of regionalism in their member states. In particular, the pressure exerted by the European Community – especially on new EU members – through its regional policy, the structural funds and other regional financial instruments has had a far more significant impact on regional structure than the Council of Europe’s approach, which seeks to establish benchmarks, standards and legal instruments.

      13. Legal protection of regional authorities at European level is fairly limited. Although there are a number of provisions concerning regional self-government, member states generally show little readiness to accept international standards or recommendations in this area.

      Framework for future action by the Congress:

      14. Regionalisation is associated with global, European and national political processes that force member states into ongoing reform of all the basic components of government. Regionalisation is thus not an isolated aspect of reform, but rather – as a driving force for change and a target of reform – part of the state’s overall political process.

      15. From this perspective, analysis of the advantages and disadvantages of strengthening the regional level is not purely legal in nature: it must centrally consider economic, political and social factors as well as aspects of European and international policy. It has a European dimension in that it touches on the balance between subsidiarity and centralisation at the European level, and an international dimension in that regions are regarded as a counterweight to globalisation.

      16. Although the extent of reforms of the regional level of government varies from country to country, local or regional government or administrative reform usually makes considerable demands on governments, parliaments and administrative departments. In terms of political return for the effort – and as with all constitutional reforms a qualified parliamentary majority will be required – there must first be reasonable prospects of success.

      17. As far as legal action is concerned, it is in the Congress’s interests for the draft Treaty establishing a Constitution for Europe to be adopted, as the text strengthens local and regional self-government.

      18. The Congress also intends revising the 1997 draft charter in a number of key respects: self-government and national integrity, adjusting the degree of self-government according to existing regionalisation models, the regional entity/central government relationship, and regionalisation and European integration.

      19. The Congress’s political work seeks to take into account the complex experiences of member states. The Congress will consequently take part in political debate about the future of the regional level in Europe as an important complex political project, and adopt a political stance on a number of major issues likely to shape regional action in the future: the appropriate, manageable degree of competition between regional units, the advantages of mutual assistance, and the need for co-operation between the centre and the regions and between the regions.

      20. Lastly, in carrying out its legal and political work the Congress will seek to engage in inter-institutional co-operationinter alia with the European Union and its Committee of the Regions – so as to transcend purely national debate, learn from national experience and what different countries’ experiences have in common, apply the lessons within the wider framework, and so develop a coherent European approach to all the issues affecting the regional level.

      1. The terms of reference

      General terms of reference

      21. The aim of the Congress of Local and Regional Authorities of the Council of Europe (Congress) is to promote, protect and develop local and regional democracy in the member states

i. These terms of reference were confirmed and strengthened by the 3rd Summit of the Council of Europe in Warsawii and by the Budapest ministerial conferenceiii.

      Work by the Congress

      22. In his report of 26 October 2005 on the "state of progress of work on the draft Council of Europe Convention on Regional Self-Government"iv, the President of the Chamber of Regions, Mr Yavuz Mildon (Turkey, EPP/CD), put forward terms of reference asking the Institutional Committee of the Chamber of Regions to prepare a report, "on the current state of regionalisation in Council of Europe member countries". The Bureau approved the terms of reference and Mr Jean-Claude Van Cauwengerghe (Belgium, SOC) was appointed rapporteur.

      23. Under paragraph 14 of the Mildon report, this report was to “represent an input of the Congress to the preparation of the Valencia conference in 2007. This political report should contain considerations justifying the necessity of a binding legal instrument of the Council of Europe in the field of regional democracy".

      24. The Mildon report also outlines the Congress’s progress in drawing up a legal instrument on regionalisation. The stages completed so far are indicated in points 1 to 15 of the report of 26 October 2005 (see Annex 4).

      Work by the Committee of Ministers/CDLR

      25. The starting point for the Congress's work thus coincides with political developments in the area of regional self-government at the 14th Conference of Ministers responsible for Local and Regional Authorities in Budapest in February 2005.

      26. In implementing the decisions of the Budapest conference, the Committee of Ministers of the Council of Europe gave the Steering Committee on Local and Regional Democracy (CDLR) the following terms of referencev:

      “took note of the statement of the Budapest Ministerial Conference on Regional Self-Government, as it appears in Appendix 4 to document CM (2005) 45, and agreed to instruct the CDLR to draft a substantial report on developments in regional self-government across member states, identifying in particular innovations and any issues common to a number of states, to be communicated to the 15th session of the Conference;
      took note of the invitation addressed by the Spanish Minister to his colleagues to hold the 15th session of the Conference in 2007 in Valencia ‘in order to review the progress made in respect of the actions, objectives and commitments set out in the Declaration and Agenda on delivering good local and regional governance’;”

      27. At its meeting on 23-25 May 2005, the CDLR accordingly established a Committee of Experts on the Legal Framework and Institutional Structure of Local and Regional Government (LR-FS) with the following terms of reference:

      to assist the CDLR in the implementation of all activities related to the legal framework and institutional structure of local and regional government.

      28. The plan adopted by the committee of experts is as follows:

      a) draw up a questionnaire to be answered by member states by 15 February 2006;
      b) prepare a draft report in 2006 based on replies by the member statesvi;
      c) finalise its work in spring 2007.

      Conclusions

      29. Important work on the progress of European regionalism is being done by both the CDLR and the Congress.

      30. However, their terms of reference are different. The CDLR is concentrating on preparing "a substantial report on developments in regional self-government across member states, identifying in particular innovations and any issues common to a number of states", for submission to the Valencia conference.

      31. The Congress’s terms of reference are broader, with a particular focus on the following objectives:

      · supplying information about major trends – developments and innovations – with regard to regionalism in member states;
      · identifying the reasons for any resistance or hindrances to the adoption of a legal instrument;
      · grouping developments and innovations together on the basis of a number of key features and attempting to identify a common core of regional innovations,

      with the aim of stimulating fresh debate on regionalisation in member states and on how to provide legal safeguards for key regional features.

      32. To fully carry out the terms of reference from the Congress it is worth examining the conclusions of the Budapest conference on regional self-government, which stress under point 7

      " the importance of regional self-government and the fact that it can represent an enrichment for democratic societies, can help address new challenges of good democratic governance and, depending on circumstances, can respond to the need to deal with public affairs as close to the citizen as possible ",

      an analysis that emphasises the benefits and prospects of regional self-government rather than static description of its current state.

      2. Terminology: regionalisation, regionalism, regional self-government, federalism

      33. There is no European consensus at present on a definition of regionsvii. The definition adopted by the European Parliament in 1988viii

      “For the purposes of this Charter the word region shall be taken to mean a territory which constitutes, from a geographical point of view, a clear-cut entity or a similar grouping of territories where there is continuity and whose population possesses certain shared features and wishes to safeguard the resulting specific identity and to develop it with the object of stimulating cultural, social and economic progress” –

      clearly illustrates the difficulties entailed in defining a region. A more sociological definition –

      “The term “region” should be used only of areas built by human endeavour and each forming a homogeneous whole – a life setting providing places of work, residence and recreation whose people are united by a strong sense of belonging often created by centuries of history.”ix

      does not yield any readily applicable criteria either. We consequently agree with Levratx that the very idea of defining the region is problematic. It seems preferable to adopt a pragmatic approach, describing the outcomes of the steps which member states have taken – in accordance with their specific history, administrative traditions, economic interests and legal foundations – to establish an intermediate level between central and local government and classifying them as belonging to one or other of various regional self-government modelsxi according to the degree of autonomy vested in them and, above all, the legislative powers assigned to them.

      34. In day-to-day practice the terms “regionalism”, “regionalisation” and “regional self-government” are often used interchangeably, whereas “federalism” has specific connotations. In any event, consideration must be given to every kind of regional unit, irrespective of the extent of its powers, its financial resources or its political structure, provided that it is organised democratically. For the purposes of this report, however, it is necessary to clarify and distinguish certain central aspects of these concepts the better to classify member states’ current or planned reforms. The four concepts are obviously not purely legal but contain economic, sociological, political and cultural elements in varying degrees.

      2.1 Regionalisation

      35. The concept of regionalisation has sources in geographical and spatial-planning terminology. It denotes the result of complex and primarily economic, ecological and infrastructural planning concerning a given piece of territory. "Regionalisation" is thus a set of coherent policies which are conducted either by central government or devolved central departments or by decentralised regional authorities and which produce their effects over an area smaller than the state – the regional unit. Regionalisation therefore does not necessarily entail any transfer of powers or functions, or any grant of autonomy to the regional authority allowing it to exercise conferred powers. For transition countries which are members or future members of the EU, regionalisation may also be the result of adaptation to EU requirements as one of the conditions for EU accession.

      2.2 Regionalism

      36. The concept of "regionalism" should be regarded as having two aspectsxii. Firstly, "regionalism" denotes overall consistency of political action by a region or other institutions in a part of the country (differentiated from other territories by geographical, historical, ethnic or other criteria) with the aim of promoting the region’s distinctive characteristics and increasing the degree of autonomy of the unit concerned with respect to central government. Regionalist activities are regularly supported by regional movements whose aims range from greater decentralisation to separatism.

      37. Secondly, on the international stage, it denotes political activities designed to co-ordinate the endeavours of several independent states to improve their mutual economic relations.

      38. The concept derives from international relations and was applied in the early 1970s to describe relations between the state and sub-national units. It therefore contains several important elements:

      a) the necessity to divide a country into several partly autonomous units;
      b) the existence of quite distinct regional elements (eg geography, history, culture, language, ethnic group, religion, economic and administrative structures);
      c) political support, ie support by the citizens, for such a regionalist approach.

      2.3 Regional self-government

      39. Regional self-government, as defined in the Congress’s draft Charter of Regional Self-government, denotes the right and the ability of the largest territorial authorities within each member state, having elected bodies, being administratively placed between central government and local authorities and enjoying prerogatives either of self-organisation or of a type normally associated with the central authority, to take charge of a large share of public affairs under their own responsibility, in the interest of their populations and in accordance with the principle of subsidiarityxiii. Regional self-government is therefore the principal content of a regionalism process.

      40. The definition by the 2002 Helsinki ministerial conferencexiv follows similar but more restricted lines:

      Regional self-government denotes "legal competence and the ability of regional authorities, within the limits of the Constitution and the law, to regulate and manage a share of public affairs under their own responsibility, in the interest of their regional populations and in accordance with the principle of subsidiarity".

      41. Legal competence, regional identity, the regional entity’s ability to take action and finance it, legitimisation and the entity’s possessing decision-making bodies of its own are some important components of regionalism as understood by the Congress.

      2.4 Federalism

      42. The concept of “federalism” (from the Latin foedus, or “union”) denotes a system of government in which territorial units – partners enjoying equal rights – have some degree of regional autonomy, if not state sovereignty, but come together within a higher common entity: the federation. Sovereignty in public international law is exercised by the federation. There are various forms of federation ranging from more co-operative models (Germany) to systems in which a very clear separation of powers prevails (the United states).

      43. As a rule, the entities within the federation transfer their overall sovereignty to it, but retain the powers normally associated with states in their capacity as sub-national authoritiesxv. The basic features of the federationxvi, along with the allocation of powers, the institutions, finance and the principles underlying co-operation and co-ordination, are governed by a constitution or constitutional document which also lays down the requirements and procedures for modifying these key components.

      44. In view of the broad terms of reference from the Congress in this area, this report will identify not only trends in regionalisation or regionalism in the strict sense but also developments in regional autonomy and federalism. The term “regionalisation” is therefore used generically to cover all developments at the sub-national level. To grasp the extent of regional development in Europe it is also necessary to describe the situation in the member states which are opting for technical and administrative regionalisation.

      3. Regional self-government trends in Europe

      3.1 The overall scope of reforms in progress

      45. In order to inventory all reforms with regional implications in all Council of Europe member states, a consolidated analysis of those countries in which reforms have recently been carried out, are in progress or are planned must satisfy the following requirements among others:

      a) the range of countries analysed must be such as to furnish an overall view of all important reforms;
      b) the countries examined should be typical of Europe’s regional diversity, particularly as regards history, institutional and legal architecture, the effects of socio-economic change on governmental structure and functioning of levels of government, geography, and the goals of civil society;
      c) the reforms should be typical of at least some of the member states;
      d) the reforms should have a certain political importance and are not just be technical ones;
      e) the reforms should demonstrate the need to legislate on regional self-government rather than stick to purely administrative or policy agreements;
      f) the engines of reform and the interests of political parties should be clearly visible;
      g) lastly, where the reforms have failed, the reasons for their failure and their impact – if the latter can already be evaluated – should be analysed.

      46. Regarding the substantive content of reforms, the following aspects at least must be covered in order to classify the shape and scope of recent developments:

      a) amendments to the constitution or to institutional laws;
      b) changes in the allocation of powers;
      c) increases or reductions in the scope of regional self-government;
      d) any new legislative instruments (such as experimental legislation or mixed legislation benefiting the regions);
      e) the impact on the principles of subsidiarity and proportionality;
      f) any changes to the role of regional organs and institutions, and to whose advantage or detriment?
      g) any changes to the financial system:
      impact of the reforms on the basic structure of financial relations – apportionment of taxes, conditions governing subsidies and financial allocations, and financial equalisation – between levels of government; effects on regional finances, including budgetary powers and powers to contract loans; observance of the principle of connexity (whereby decisions on funding and how it is allocated are taken by the level of government which bears the expenditure arising from a statutory obligation);
      h) staffing and management: the impact of reforms on staff and administrative management;
      i) inter-regional co-operation: the effects of reforms on inter-regional or cross-border co-operation;
      j) participation in national or European affairs: compliance of reform processes with the procedures governing co-operation and consultation between different governmental levels and at national or European level; any new forms of co-operation between levels of government or, conversely, new forms of procedural separation.

      3.2 Recent reforms in the member countries

      47. The reforms and developments recently carried out, in progress or planned in the following countries should give a comprehensive overview of the scope of regional reforms in member statesxvii.

      3.2.1 Austriaxviii

      48. A reform plan prepared by a Constitutional Convention in 2003 foundered in late 2004. A parliamentary committee, set up by the National Council in March 2005, completed its work on 4 July 2006, but no legislative decisions have ensued. Its conclusions were summarised as follows:

      “The special National Council committee to prepare for discussions on reform of the Constitution has completed its work. Over ten sessions the members, assisted by experts, addressed the following issues: simplification of the Constitution, protection of fundamental rights, administrative institutions, principles governing security policy, allocation of powers, Federal Council and democratic supervision. An outline agreement was reached regarding the establishment of regional administrative courts, retention of the neutrality law and procedures for simplifying the Constitution. Other issues are still outstanding, such as the distribution of powers between the Federation and the Länder, recourse to the courts for the protection of fundamental rights and the strengthening of supervisory rights. The President of the National Council, Andreas Khol, is confident that at least partial reform can be carried out in the lifetime of the next parliament.”xix

      49. It appears, therefore, that there is a general willingness among Austrian political parties to reopen the matter after the September 2006 general election.

      3.2.2 Belgium

    50. The development of regionalism in Belgium is characterised by continual adjustments to institutions, powers, finances and procedures for consultation between the federal level and, on the one hand, the regions in their capacity as sub-national political authorities and, on the other, the communities in their capacity as political authorities. There do not appear to have been any significant reforms relating to transfer of powers since the Special Act of 13 July 2001 and the decree by the Parliament of the Walloon Region of 27 May 2004 transferring responsibility to the German-speaking Community for local authorities located within its boundaries. However, parliamentary practice – including at federal level – shows that plans and proposals are continually being put forward with a view to shifting powers, financial resources and administrative structures between the various units of governmentxx. It is likely, therefore, that Belgium will continue to debate federal development (particularly the role of the Senate, the granting of constitutive autonomy to the Brussels Region, concurrent federal and regional elections, use of the term “parliament” rather than “council” for the regional representative assemblies, establishment of a Constitutional Court and adjustments to the allocation of powers) after the 2007 federal elections.

      3.2.3 Croatiaxxi

      51. Following the constitutional reform of 9 November 2000, relations between the state and the regions were reorganised in 2001xxii. The legal basis for regional self-government is found in Article 133 of the Constitution and Section 6xxiii of the Local and Regional Self-Government Act. The basis for government reforms aimed at decentralisation is the “Framework Programme for Administrative Decentralisation in the Republic of Croatia 2004-2007”. Local and regional government reform is intended to bring sub-national structures into line with EU requirements in preparation for accession. The reform process is overseen by a Decentralisation Committee made up of representatives of ministries and associations of local and regional authorities. The aim is to distribute powers among government departments and local and regional authorities, to increase the latter’s autonomy, to improve the performance of government departments and their staff and to reduce economic and financial disparities between local and regional units. A bill of 14 February 2005 seeks to amend the Local and Regional Self-Government Act.

      3.2.4 Denmarkxxiv

      52. Denmark has embarked on a wide-ranging reform of its regional fabric, with two overall aims: abolishment the existing structures of 13 amtskommuner, and creation of 5 new entities on regional level; and concentrating the new bodies’ powers by delegating one main area of responsibility, that of public health. The reform will enter into force on 1 January 2007. The Danish government has made it clear that regions’ responsibilities will be restricted by law in an effort to prevent any overlapping of powers. Regions will not enjoy any residual powers that might broaden their scope for action. The Congress has expressed some reservations about the Danish reforms in progressxxv. It takes the view that the principle of subsidiarity normally calls for regional units to enjoy powers in respect of a significant share of public affairs – more extensive powers, therefore, than those planned by the Danish authorities. In addition, the European Charter of Local Self-Government would no longer be applicable to the new regions, so that these new entities would have less legal protection than that the former amtskommuner had hitherto been guaranteed by the Charter. In any event, the Congress will carefully monitor developments in Denmark, as the size of the new regional units (about one million inhabitants) and the budgetary and political impact of the exercise of their powers may serve as a model.

      3.2.5 France xxvi

      53. For 30 years France has pursued a vigorous policy of decentralisation (transfer of power from central to local government), considerably increasing the influence and autonomy of local authorities. This has coincided with a significant process of devolution involving the transfer of powers, in public administration, from central organs to local outposts (primarily the département prefects). The history of regionalisation began in the mid-1950s with the establishment of new state- administration districts (regional administrative districts with regional prefects). In 1972 regional public entities with elected assemblies and presidents were established alongside the regional prefects. In 1982 these regional public entities became regional authorities. Only recently, since 2003, has the Constitution referred to regions as regional authoritiesxxvii.

      54. The region is now both an outpost of central government, headed by a regional prefect, and a new, decentralised level of local democracy. The reform process is guided by the following objectives:
      · the regional level must not be developed at the expense of the lower-level local authorities (départements and municipalities), which decentralisation has strengthened as well;
      · nor must the regional level be developed at the expense of the central state, which is the embodiment of national unity and the public good;xxviii
      · the region was not designed as an additional tier of government, or as a community in its own right, but rather as a strategic linking mechanism to ensure consistency of local/regional policies.
       
      55. Discussion of regionalisation in France, particularly in the context of evaluating the substance and scope of the 2003-2004 reform, swings between two positions:
      · on the one hand, those who emphasise the fresh impetus likely to come from more powerful regions,
      · on the other hand, those who regard the development of regions as a break with the principle of equality, an awakening of regional identity and a rejection of national solidarity.

      3.2.6 Georgiaxxix

      56. The organisation of local and regional government in Georgia is an issue that has yet to be resolved. Under the Georgian Constitution (Article 2, paragraph 3), it will not be settled until the country’s territorial integrity has been restored. The question of regions is still uncertain. There is no consensus between the political parties on the principles governing the organisation of local and regional government. In November 2005, the political parties adopted a “text of national understanding” which states that certain powers should be delegated to the regions, although this issue comes last in the list of priorities. The Congress considered the situation with regard to regionalisation in Georgia in 2004xxx.

      3.2.7 Germanyxxxi

      57. In Germany, a wide-ranging plan for constitutional reform was approved by the Federal Parliament on 30 June 2006, and by the Federal Council on 7 July 2006xxxii. It has a number of key objectives:

      · to make the German federal system more effective;
      · to simplify the allocation of powers;
      · to ensure more balanced financial arrangements;
      · to remove bottlenecks between the Federation and the Länder;
      · to identify political responsibilities and allocate them to the different tiers of government.

      This Act amends the Constitution (Basic Law). The detailed arrangements are laid down in a supplementary Act. The reform has mainly entered into force on September 2006.

      3.2.8 Italyxxxiii

      58. Italy has completely reviewed the relations between the different tiers of government since 2001. Furthermore, a draft constitutional revision concerning the whole of Part Two of the Constitution presented by the former government Berlusconi was rejected in the referendum of 25 and 26 June 2006 (approximately 62% of votes against, compared with 38% in favour, with a turnout of approximately 54%). This reform project had two targets: allocation of new, exclusive legislative powers to regions in the following sectors: health, education and regional administrative authorities as well as the modification of the composition of the Senate (to be called the “Federal Senate of the Republic”), whose members would have been elected in each region in a ballot held to coincide with regional council (Consiglio regionale) elections.

      3.2.9 Latviaxxxiv

      59. Latvia is one of those new EU member states that have had to modify their territorial organisation in preparation for EU accession. Under the Local Authorities Act, the main function of Latvia’s five regions is now to consolidate regional development planning and to perform the associated tasks of co-ordination and co-operation. The current debate on territorial structure focuses primarily on the issue of the size and efficacy of regional units; it has not yet given rise to any concrete plans for reform.

      3.2.10 Portugalxxxv

      60. Under Article 6, paragraph 1, of the Portuguese Constitution, “the state shall be unitary and shall be organised and function in such a way as to respect … the principles of … the autonomy of local authorities and the democratic decentralisation of public administration”. The Constitution provides for two forms of sub-national authority: the autonomous regions, which enjoy legislative power, and local authorities. The autonomous regions, which comprise the Azores and Madeira archipelagos, were established by the Constitution itself. Local authorities are divided into three levels: parishes (freguesias), municipalities and administrative regions. Provision is made for the latter in the 1976 Constitution, but they are not yet in place.

      61. The following reforms are in progress or under considerationxxxvi:
      · drafting of a new Act on local and regional finances;
      · new arrangements for technical and financial co-operation between central government and the local authorities;
      · a new model for allocating and setting the powers of metropolitan areas and urban communities;
      · drafting of regulations on the transfer of powers from central government to local authorities.

      3.2.11 Romania

      62. Any move towards federalism or political or administrative regionalisation is impossiblexxxvii under the existing constitutional frameworkxxxviii. As a future EU member state (from 1 January 2007), Romania is under an obligation to modify its national structure in accordance with accession requirements. The 2003 revised Constitution consequently stipulates – in the section on the economy and public finance, rather than that on local self-government – that the state must ensure the implementation of regional development policies in accordance with the objectives of the European Union. The legislative extension of this constitutional provision is Law 315/2004 (the Regional Development Act).

      63. The main change instituted by this Act is the establishment of “development regions”. Development regions are not local authorities, and enjoy neither local self-government nor legal personality. They are simply a form of co-operation between counties (including the municipality of Bucharest among the counties for this purpose).

      64. It appears that the legislation is not entirely consistent. On the one hand, it provides for development regions to be established on the basis of agreements concluded between county councils, meaning that they are voluntary. On the other hand, the law expressly establishes eight development regions, specifying their names and the counties they comprise; it is therefore mandatory for each county to be part of a specific development region. In practical terms, each of the eight development regions includes between two and seven counties. Clearly, therefore, these are not genuine regions, and do not embody the principle of regionalisation.

      65 Reforms in progressxxxix:
      In order to deepen the public services' decentralisation and deconcentration and to strengthen the local autonomy, currently, Romania has passed several laws with respect to local and regional government:
      * Law on prefect's institution;
      * Law on local public finances ;
      * Law on framework decentralisation .

      Other elements of the package will follow in a near future, particularlay a
      * Law on local public administration and a
      * Law on statute of civil servants.

      3.2.12 Spainxl

      66. Spain has put forward a project of amending its Constitution with a reform consisting in:
      · changes to relations between the central government and the Autonomous Communities;
      · changes to the statutes and powers of the regions;
      · strengthening the Senate.
      (Propuesta de reforma de estatuto de autonomía (Catalunya))xli. The reform has sparked a heated debate on the political expediency and legal feasibility of recognising a nation (Catalonia) within the Spanish state. It will undoubtedly have an impact on other entities enjoying regional autonomy.

      3.2.13 Switzerland

      67. In 2004 Switzerland began a reform of its financial equalisation system and the redistribution of powers between the Confederation and the cantons with a view to apportioning responsibilities more clearly and reducing disparities between the cantons. The new constitutional rules on the subject were put to the people voting on 28 November 2004 and accepted by 64.4% of the electorate and twenty and a half cantons. The work following on from this to prepare implementing regulations will be carried on with due diligence. This involves, in particular, the partial revision of 33 federal laws. The reform should enter into force in 2008.

      3.2.14 Slovakia

      68. Reform of public administration was part of the transformation process carried out in the Slovak Republic in the early 1990s. As a first step, local government was restored and separated from central government. Until 2001, the reform focused on restructuring within central government departments, rather than genuine decentralisation of public administration.

      69. The establishment in 2002 of eight regions (higher-level sub-national units) enjoying self-government may be regarded as a political compromise. Most studies by Slovakian experts conclude that the Slovak Republic should be divided into twelve to sixteen “natural” regions. The model involving the decentralisation of central government departments to eight regions (kraje), subsequently used for the restructuring of local self-government, has played a decisive role. In spite of a broad political coalition and the fact that the “eight-region model” has been strongly criticised as “artificial” by all the coalition parties, it has not been possible to reach a consensus on another regionalisation model.

      70. As from 2002-2004, a wide range of powers and responsibilities began being transferred to local authorities and to the newly created regional units. This process was a prerequisite for reform of the budgetary system. Since 2005, local and regional authorities have had increased revenue of their own, and regions have had their own tax receipts. Notwithstanding a few difficulties in co-ordinating transfer of powers with transfer of the resources needed to exercise them (difficulties that have attracted strong criticism from local and regional authorities), the reform is a positive development in terms of stability, responsibility and financial autonomy of the local and regional levels.

      3.2.15 Turkey xlii

      71. Regionalisation in Turkey is characterised by two features. As a unitary state, Turkey does not have a system of regional self-government or regional authorities. Under Article 123 of the 1982 Constitution, unity of government is one of the fundamental principles of the republic. Under the same article, the organisation and operation of government are based on the principles of centralisation and decentralisation. These two forms of government complement one another within a unitary state system. The term “decentralisation” must be understood in a purely administrative sense. The decentralised units of government are local authorities. The Constitution does not allow the establishment of autonomous regional entities enjoying political or legislative powers. Although it allows Turkey’s Grand National Assembly to legislate on the obligations and powers of local authorities in accordance with the principle of decentralisation, this concept is not broad enough to allow the establishment of autonomous units at the regional level.

      72. However, Article 126 of the Constitution does allow the establishment of devolved institutions at the provincial and regional levels. These devolved organs can have the function of acting on central government’s behalf at the level of regions comprising a number of provinces. Though simply an extension of central government, they meet a concern for efficient public services. Article 126, introduced to deal with the workings of central government, is the only provision for setting up regions with decision-making power (though not legislative power) in line with the models discussed at the Conference of European Ministers responsible for Local and Regional Government held in Helsinki on 27 and 28 June 2002 (models 5 and 6).

      73 In accordance with this provision, numerous regions have been established in Turkey with a view to more efficient provision of a range of public services. One example is the South-East Anatolia Development Programme, which brings together nine provinces and since 1989 has been responsible for preparing and implementing a development plan for the region.

      74 In addition, of the three types of local authorities that can be established under the Constitution, namely municipalities, local provincial authorities and village authorities, the second may be regarded as a form of regional authority with decision-making (but not legislative) powers instituted in 81 provinces (counties), again in line with the Helsinki conference (model 5). These entities have directly elected councils. The fact that they are represented in the Council of Europe’s Chamber of Regions indicates that they are more or less regarded as regional authorities.
      75. In the light of the start of accession negotiations between Turkey and the EU, it remains to be seen whether the programmes designed to transform the Turkish state and Turkish society will have the effect of strengthening local and regional authorities. The Congress recommends “that further thinking should be given to greater decentralisation at provincial level, including gradual establishment of politically significant provinces able to manage a substantial share of public affairs with their own capacities”.

      3.2.16 United Kingdom xliii

      76. In the United Kingdom, the provisions on regional government introduced as part of the “devolution” programme implemented by the Labour government since 1997 are still subject to various adjustments. The main proposed change concerns Wales, where the existing Government of Wales Bill (see below) would substantially modify the provisions of the 1998 Act on the same subject. In Northern Ireland, the considerable scope afforded by the form of legislative delegation introduced by the 1998 Northern Ireland Act has not yet taken effect owing to the political deadlock.

      77. In Scotland, the Scottish parliament and executive established in 1999 under the 1998 Scotland Act have attained some degree of constitutional stability. The British government does not intend to review these arrangements for the time being. A few minor changes have been made in respect of relations between the governments and parliaments of the United Kingdom and Scotland, such as the introduction of new procedures for legislative approval (parliamentary approval of legislation passed by Westminster in the delegated fields). In March 2006, the Scottish Liberal Democratic Party published the Steel Commission’s report, which advocates a significant extension of the Scottish parliament’s powers and a considerable degree of budgetary autonomy.

      78. In England, the process of establishing elected regional governments has been at a standstill since this plan was rejected in the November 2004 referendum in north-east England. The provisions of the 1999 Greater London Authority Act are still valid. For more information about the various stances on the “regionalisation of England”, reference may be had to the reports and statements compiled by the House of Commons under the title “Communities and Local Government Committee: Is there a Future for Regional Government?xliv, which discuss the referendum’s implications for the rest of the regionalisation process in England.

      3.3 Perceptions of regional self-government in Congress monitoring reports

      3.3.1 Hungary
      79. In 2002 the Congress concentrated with respect to Hungary upon the regionalisation process xlv as an example for the restructuration of the territorial tier of government of an accession state of the European Union. The Congress has been interested particularly in the relation between the traditional comitat (county) structure and the new regional planning units. Insofar the Congress recommendation concentrated upon the following remarks:
      “3. Beside the two types of local government, the municipalities and the counties, there is in full evolution the third level of governmental action, the level of the Development and Planning Regions. County development Councils exist in each region, allocating important financial means to development projects.
      Following the preparations of Hungary for EU membership, the County level has been considered as too small and was classified as NUTS III units. For planning, programming, financing and supervising of EU funded regional development policies, it was considered necessary to have larger units replying to mechanisms of the EU Structural Funds support. Therefore, 7 larger Development regions have been created, which coincide with the Planning-statistical regions.
      As the coincidence of EU eligible regions with regional self-government structures is not obligatory, these Development and planning regions are dominated by central government structures. The experience has shown however that EU support by Structural Funds has been the most efficient in regions with government or self-government structures.
      The 7 NUTS II regions in Hungary form the basis for co-operation structures between central government and local/county self-government representatives. Since 1999, Regional development Councils for the 7 regions are mandatory and their rights and competencies are strengthened since then. Regional and County development Councils are corporative bodies, the members of which are delegated representatives of central government ministries and agencies, of local authorities and of economic organisations. Central government influence is considered to be strong in these development councils.”
      80. Hungary is insofar a caracteristic example of the different interests in organizing the state territory along the lines of traditional units with strong democratic roots and public acceptenace on one hand and the necessity of strengthening the development planning regions based on counties on the other hand. As these regions will be the basic elements for regional development policies in Hungary and the management of EU Structural Funds, the question will come up in what way the planning regions will have to be further developed and if they could be equipped in the long run with self-government competencies and appropriate resources. Recent decisions have shown that there is a tendency to strengthen these units.

      3.3.2 Netherlands

      81. As regards the Netherlands, the Congress raised primarily the issue of local taxes in Recommendation 180 (2005). This issue impinges on relations between the central government and the provinces, since it is a matter of ascertaining the extent to which the state is prepared to grant fiscal autonomy to local and regional authorities and subsequently maintain and possibly extend itxlvi.
      62. For its part, the Dutch government does not believe that the fiscal measures envisaged contravene the European Charter of Local Self-Government in any way, emphasising that the planned compensatory financial allocations from central government will give local authorities greater budgetary stability thanks to a guaranteed, stable level of revenue.
      83. Another topic could envisage the procedure of nominating the “Commissioners of the Queen” of the Dutch provinces, who up to now are appointed by the central state government and not elected by the representative bodies of the Dutch provinces.

      Recent developments in Dutch regional administration

      84. At the end of 2006, a report appeared entitled „The future of decentralised administration; the decentralised administration of the future“. The competent minister presented this document to close the discussion about the future of mid-level adminstration. In his accompanying letter, the Minister suggested that this report represents a survey, and an interim summary of the situation so far. The Minister’s chief conclusion about adminstration at provincial level is that he sees no fundamental reason for considering any change to the constitution, which could result in an different appreciation of the role of provincial government (so-called ’closed housekeeping’). However, he is a proponent of differentiation within the existing structure. In the opinion of the Minister, at some point in the future, the Joint Regulations Act (Wgr) plus regions - a form of intensive cooperation between local governments - outside the Randstad conurbation can be abolished. In the Randstad itself, he would prefer to review the situation in connection with the administrative solution that must still be selected. In the opinion of the Minister, a merger between provinces outside the Randstad is not necessary. This means that mid-level administration in the form of provinces must continue. Some discussion is however possible about the primary package of tasks. As a result of decentralisation, the Minister sees shifts in tasks and responsibilities towards municipalities, with a view to increasing their autonomy.
      85.To be able to successfully bear this responsibility, he believes that municipalities must be increased in size to at least 20,000-50,000 inhabitants. The Association of Netherlands Municipalities (VNG) responded to that section of the report with considerable caution. Much to the disappointment of the provinces, the municipalities did join with one another in calling for restrictions of provincial tasks.
      86. Recently (on 17 January 2007), a recommendation about the Randstad was published (Advies Commissie Versterking Randstad). This recommendation suggests that in the Randstad, instead of the current four provinces, there should be a single administrative body that concentrates on the spatial and economic underpinning of the area. A fundamental administrative reorganisation is required, under the leadership of the new Cabinet. However, solutions to serious bottlenecks and the introduction of the necessary improvements cannot wait that long. With that in mind, an urgency programme for the Randstad must now already be initiated, focusing on the themes spatial planning, accessibility, residential, working and living climate, and knowledge and innovation.
      87. At the moment of writing of this section of the report, following the elections on 22 November 2006, the process is underway for forming a new Cabinet. In the run-up to the elections, one point in the election programmes of many parties was a major cutback in the budget for the provinces. What remains of these proposals in the government agreement, and whether this will also have consequences for the package of tasks allocated to the provinces, remains to be seen.

      3.3.3 Poland

      88. The Congress has adopted a Recommendation on local and regional democracy in Poland, in which it advocates the followingxlvii:

      “g. in order to avoid confusion and possible misunderstandings, the legal sharing of responsibilities between, on the one hand, local and regional authorities and, on the other, the government authorities (both at central and peripheral level) should be constantly clarified and adapted in the light of the spirit of the reform. This sharing should not be undermined by the adoption of ad hoc measures. With this in mind, the share of responsibilities between gminas, powiats and voivodships should also be permanently clarified and updated in consultation with the associations concerned;
      h. the gradual transfer of responsibilities to local and regional authorities should be accompanied by the transfer of the necessary financial resources to carry them out; the difficult economic conditions of the country should not represent an excuse to weaken the powers of local and regional authorities;
      i. in this respect, Polish authorities should take into consideration the future possibility to authorise powiats and/or voivodships to levy their own taxes (within the limits of the law); in order to avoid creating an excessive financial burden for the citizens, this measure should be accompanied by the parallel withdrawal of a number of state taxes;
      p. in order to avoid political conflicts or interferences in the functioning of self-government at regional level, the representatives of central authorities in the regions (voivods) should be civil servants. On this basis, a public register of voivods, recruited for their merit and competence, should be created;”

      The action taken by the Polish authorities in response to these recommendations cannot be assessed at present, given the change of prime minister and government in July 2006.

      3.3.4 Russia

      89. As regards Russia, in Recommendation 143 (2004) of 26 May 2004xlviii the Congress raised a number of sensitive issues relating to the exercise of powers, procedures for agreements and treaties between the Federation and the Constituent Entities, discrepancies between delegated functions and available funds, economic disparities between the Constituent Entities, and supervision procedures. One point worth mentioning is the process of amalgamating regions, in particular in Siberia. In the referendum on amalgamating the regions of Krasnoyarsk, Evenk and Taymyr, the proposal attained the necessary majorities.

      3.4 Evaluation of developments at the regional level in a number of member states

      90. Regionalism and the strengthening of regional self-government are at the very heart of a process of political democratisation and social and economic development in most Council of Europe member states. For example:

      91. Federal states have undertaken major reforms. Switzerland reorganised financial arrangements between the cantons and the Federation in 2005. Germany completely restructured its federal institutions in 2006 with a view to enhancing the country’s political stability and international competitiveness. Belgium has initiated a wide-ranging debate on the possibility of taking federalisation further. A 2001 Act transferred additional federal responsibilities to the regions.

      92. Highly decentralised states such as Italy and Spain are undertaking far-reaching reforms of regional authorities, completely redrawing the relationship between the central and regional levels of governmentxlix.

      93. Fairly centralised states are also seeing significant reforms. France has started implementing the decentralisation programme approved in 2003. The United Kingdom is at the stage of consolidating its “devolution” reforms and refining the distribution of powers between London and Scotland and between London and Wales. In addition, a wide-ranging debate has been launched on the future of the English regions. Sweden and Denmark have begun to streamline their sub-national structure by creating larger units in a drive for efficiency.

      94. The East European states that are new European Union members are significantly restructuring their regional tiers so that they are better able to implement common policies, particularly the EU’s structural policy.

      95. In other Council of Europe member states, organisation of the regional level is still on the agenda. The Croatian government has set up a committee responsible for introducing a plan to decentralise powers and financial resources. Norway intends presenting a white paper in October 2006 on the distribution of functions among the different tiers of government. According to the government, the reform might enter into force around 2010.

      96. Developments in the area of regionalism and regional self-government in Europe display at least the following characteristics.

      97. National aspects:

      a) Territorial and administrative organisation in nearly all member states, regardless of their size and internal structure, is evolving rapidly. Reforms affecting the regional level are under way in virtually every country.
      b) The reforms frequently involve several pillars of the system of government: constitution, administration, public finances, procedures for co-operation between levels of government.
      c) This results in an extremely wide variety of additional reforms, which makes it difficult to put them on a systematic footing.
      d) There are a number of forces driving the reforms – internal pressures and outside influences overlap. Politics, the economy, the system of government itself, a section of civil society, the media and researchers are the main locomotives of reform.
      e) The result of the referendum in the United Kingdom on democratic regional assemblies shows that a large part of the population is opposed to any change in the administrative or territorial fabric unless the advantages of introducing a regional tier of government are clearly demonstrated.
      f) Although the extent of regional self-government reforms varies from country to country, any kind of territorial or administrative reform usually calls for considerable effort on the part of governments, parliaments and the relevant administrative departments. Accordingly, member states are sometimes hesitant about embarking on reform if success is not guaranteed.
      g) Completed, ongoing or planned reforms are generally of some magnitude as regards the transfer of powers, financial resources and staff, because it does not make sense politically to embark on an insufficiently ambitious reform.
      h) Strengthening of the regional level normally goes hand in hand with increased pressure on regional authorities to improve their "governance" in terms of effectiveness, improvement of public services and lower costs. Although generally interested in expanding their powers and areas of action, regional bodies therefore hesitate to accept greater self-government if the resources for exercising such powers are inadequate to the tasks transferred.
      i) Despite certain legal provisions at European level dealing with regional self-government, member states generally show little readiness to accept international standards or recommendations in this area – internal territorial organisation tends to be viewed as a national preserve.

      98. European aspects:

      a) The European Community and the Council of Europe influence the development of regionalism in member states through their policies and the resulting legal rules. In particular, the pressure exerted by the European Community – especially on new EU members – through its regional policy and the structural funds or other financial instruments with a regional focusl has had far more perceptible effects than the Council of Europe’s approach of establishing benchmarks, rules and/or legal instruments.

      b) Debate about the advantages and disadvantages of regional self-government is not exclusively legal: it must pay careful attention to economic, political and social factors as well as aspects of European and international policy. It has a European dimension in that it touches on the balance between subsidiarity and centralisation at the European level, and an international dimension if regions are viewed as acting as a counterweight to globalisation.

      99. There are those who conclude from these findings that it is technically impossible to summarise regional developments or move towards a coherent policy on European regionalism. However, the work undertaken by the Congress and the CDLR, particularly at the Council of Europe ministerial conferences in Helsinkili and Budapest, has demonstrated both the existence of political commitment to producing a legal instrument and the technical feasibility of legislating on regional self-government and classifying the various regional entities into a limited number of models.

      100. These general findings may therefore be viewed in one of two ways:

      101. Regionalism and the strengthening of regional self-government are at the very heart of a process of political democratisation and economic and social development in the member states. Seen thus, regionalism is a leaven in a country's modernisation, a living and creative movement awakening innovative ideas and positive political emotions. It reflects a more or less general desire to organise the state into three levels of government out of a concern for subsidiarity, clearly defined responsibilities, transparency, closeness to the citizen, effectiveness and accommodation of users’ needs in the supply of basic services by the welfare state. The economic performance of regions enjoying self-governing status is superior to that of other regions. The principles of democracy, the rule of law and legality call for legal institutionalisation of the rights of regions, which control a growing share of public affairs and spend a substantial portion of state tax revenue.

      Alternatively:

      102. The regional level has not yet found its niche between the central and local levels in the fabric of government. As a result, reforms and adjustments must be continued in order better to define, among other things, the powers, financial basis and institutional role of regions, together with administrative procedures for dealings between levels of government. Given the magnitude and frequency of the necessary changes to governmental systems at the different levels, it is advisable not to fix the status and operational details of regional self-government by law yet. From this perspective, regionalism is seen as an inconvenience, producing imbalances and tensions that impede good governance between local authorities and the central state.

      103. It is thus doubly necessary to reopen the debate on the main directions of European regionalism and the need for effective legal instruments with which to put regional self-government into practice. Firstly, as much information as possible should be gathered about current regional developments and the driving forces behind the reforms. Secondly, from this information we need to extract a well-founded, comprehensive and in-depth picture of European regionalism, so as to allow a thorough discussion of regional development at the Valencia conference in 2007.

      104. The developments in member countries outlined above illustrate:

      · the frequency and intensity of regional government reform;
      · the range of issues addressed by member states;
      · the political stances and hidden agendas underlying the reforms.

      105. Be that as it may, the advancement of regional democracy is linked to the political, economic, scientific, cultural and social progress and developments experienced by European states, peoples and societies.

      106. Given the major historical, legal, social and economic differences between member states’ regional institutions – the great diversity of European regionalism – there are clearly a variety of motives and justifications for the reforms in progress. The reforms are not uniform or parallel. In some cases, regionalisation is even declining as a result of moves towards re-centralisation and re-nationalisation in some European countrieslii.

      107. Attempts to step up regionalisation and give regional entities’ more room for manoeuvre come up against the same obstacles as are encountered by central governments: budgetary constraints, staffing cuts and the mounting cost of welfare schemes. The existence of both central government and local authorities is long accepted, yet regionalisation – the process of establishing a tier of institutions in between them – comes under greater pressure from both sides than the central and local levels are exposed to, and is required to demonstrate its legitimacy and the value it adds to society. It consequently comes as no surprise whatsoever that approaches to the “regionalisation / regionalism / regional self-government / federalism” issue swing – during the debate on regionalisation in England, for instance, which has placed considerable emphasis on the concept of “governance” – between positions such as the following:

      “Regional government is an unelected unwanted body of costly people working against the wishes of the majority of the population, and should be dismantled, not replaced under another guise.”liii

      “The core regional issue remains one of democratic governance and the democratic deficit for the regions both at the centre and at the regional levels. Driven by the need to plan and deliver the provision of improvements to regional infrastructures and services it is not surprising that centrally driven administrative regionalisation continues apace. What the centre does not seem willing or able to do is to let go real power. In a democracy only ultimate accountability to the voter confers the legitimacy of representative government to tax and spend.”liv

      “The strategic case (paragraphs 54-80)
      5. Regional institutions bring a unique strategic perspective to policy development and spatial decision making; they bring together a range of expertise drawn from all levels and sectors within their region to better plan and integrate investment decisions. The regional level focuses on a strategic role rather than service delivery.
      6. Regional assemblies are inclusive strategic bodies ‘of the region’ and bring together representatives from key sectors across the region, sub-region, major cities and urban and rural areas. They also embrace the full range of political opinion in the region. This all-embracing nature places assemblies in an ideal position to contribute to and ensure consistency across regional strategies.
      7. There are key spatial issues which need to be addressed at the regional level including housing and planning. These are issues which often cross local authority boundaries and entail investment over a number of years. Therefore, a regional strategic tier can plan successfully for a region's future.
      8. The Government is ensuring deeper regional involvement in policy development through innovation, for example inviting regions to advise on their priorities through Regional Funding Allocations. This is intended to ensure full advantage is taken of regions' unique perspective across these funding streams and to assist them in planning for the longer term.”lv

      108. From this range of views, it is apparent at the very least that modern governance and co-operation and co-ordination between local/regional authorities are characterised by greater interplay between “top-down” and “bottom-up” initiatives and by increasingly cross-sector, horizontal relations at the different levels of government. In addition, these various developments are also influenced by international processes and – in the case of EU member states – European integration. We are therefore looking for criteria that meet the requirements of all these developments and add up to a coherent, normative institutional approach.

      4. Management of regional self-government developments at international, European and national level

      109. Additionally, it is not sufficient to describe purely institutional developments. In most cases, a reapportionment of powers or a shift of balance between different levels of government calls for analysis of the reasons for reform, the underlying social, economic, political and cultural factors and the objectives – for example, coping with increased competition, enhancing a country’s capacity for innovation or preserving social cohesion.

      110. As far as the value added by greater regionalisation is concerned, it is important to view the regions’ role in the context of certain key developments at the European or global level.

      4.1 Regionalisation and globalisation

      111. There is now a clash between two realities: on the one hand, globalisation, which imposes uniform rules, challenges borders and (at the behest of international bodies such as the WTO – Doha) favours abolishing all forms of protectionism; on the other, regions, which owing to their closeness to the citizen and the sense of belonging they inspire, appear able to offer some resistance to globalisation. Key ideas at the regional level are affirmation of regional identity, regions’ desire to be in charge of their own destiny and development and regions’ commitment to protecting their environment, preserving their culture, promoting their tourism assets and, importantly, safeguarding their own economic networks and labour markets, and protecting jobs, particularly from relocation.

      112. Increased regional decision-making power in these areas can therefore act as a counterweight to globalisation, which some find alarming, which is irreversible, but which must be watched carefully, regulated and “counterbalanced”. Regions’ size makes them meso-systems, intermediaries between global systems, states and local authorities. They are subjected to the dual pressures of preserving their traditions and potential handed down from the past and adapting to a mobile, changing, globalised world. Given the impact at regional level of decisions taken by global playerslvi, it seems legitimate for the regional level now to be demanding greater co-decision rights or the right to review decisions taken at the national or global levels.

      113. The other side of having an increased say is an obligation on the regional level continually to improve its performance. Regions must now set the pace in terms of competitiveness and opening up to the outside worldlvii. In other words, in the face of market liberalisation and while maintaining universal basic services to the public, regions must invest in quality factors: political, institutional and financial stability, ability to innovate, product quality, productivity and rapid adaptation to their environment – in other words, to change.

      114. Macro-economic studies show some interference between globalisation developments and regional concernmentlviii. The implication is that regionalism is an alternative to globalisation.

      “Regional institutions among countries sharing similar preferences can be a solution to the problem created by differences in preferences, even when externalities are truly global. To the extent that the rules adopted at regional levels are mutually compatible and regional governing institutions are in dialogue with each other, the need for a global framework is reduced. International trade is an interesting case where the expansion of regional arrangements now seems to be overtaking multilateral rules.”

      115. But the institutions responsible for regional legal coordination to counterbalance global effects are probably the independent states and not the sub-central level. So an in depth study to verify the legal and economic possibilities of sub-national regions to answer globalisation processes is still missing.

      4.2 Effects of European integration (EU)

      116. In European Union member countries the current situation with regard to integration arouses conflicting reactions. Although European integration has restricted national sovereigntylix, particularly through transfer of national powers to the European level, recent developments have prompted member states and their regional entities to consider whether to redirect their energies to the national level.

      117. This is the result of at least two factors. The first is the deadlock over an EU constitution. The outcomes of the referendums in France and the Netherlands have prevented the adoption of the draft EU constitution, making it impossible for EU Europe to set coherent, effective policy objectives in all spheres of Community action. Politicians in member states are less and less confident that the EU can offer appropriate solutions to European or international challenges. It is understandable, therefore, that member states are remedying this power gap by turning to intergovernmental action. Genuine renationalisation may thus be observed within the EU. This is a somewhat adverse development for the regions in that they lose an active Europe-level partner which was previously able to act as a counterweight to the governments of member states, particularly through cohesion and partnership policies.

      118. The second factor is EU finances. The agreement on the 2007-2013 financial framework demonstrated member states’ desire severely to restrict Community funds. Community activities are consequently being squeezed financially, and the beneficiaries of the most costly policies must turn (or turn back) to their national governments. This has intensified competition between the central and regional levels for available financial resources and allocation of national funds.

      4.3 Regionalisation, national identity and nation-building
      “The greatest danger to the nation state comes from the nation, because the homogenisation which the project conceals can be achieved in multi-ethnic states only by means of separation.” (Ralf Dahrendorf 1994) [translation]
      119. The concept of respect for – or preservation of – “national identity”, which has recently been given prominence in a number of member countrieslx, influences the regionalisation debate in two ways. Firstly, it limits regions’ room for manoeuvre when it comes to asserting their distinctive features. Secondly, it puts increasing pressure on them to align their policies with the central government’s major policy objectives. Even if the concept of “national identity” does not expressly appear in the constitution or an equivalent instrument, it exerts political pressure on policy-making and policy implementation at regional level.

    120. Nation-building

      “The international community’s experiences … in the Balkans … brought home that the disintegration of a state and the fragmentation of a society can trigger violent conflicts or prevent them from being resolved. Such situations can have an impact on economic, social and political development, cause humanitarian disasters, destabilise whole regions and lead to international terrorism.”lxi

      121. In order to deal with the problems arising from such disintegration, the international community encourages a process of “nation-building”lxii. This process may adopt a programmatic approach or be conceptually based, seeking for example to foster social stability or economic development through the nation state. Whatever the case, “nation-building” in these circumstances leaves virtually no latitude for delegating central functions to other levels of government. It goes without saying that regionalisation faces particular difficulties in transitional east European countries and countries that are splitting up. If, against such a background of fragmentation, recognition of the right to self-determination prompts nation states to separate from one another, there ceases to be any room inside the state for setting up regional bodies with enhanced autonomy.

      4.4 Member states’ approaches to regional matters

      4.4.1 Central governments’ local and regional policies

      122. Former French prime minister Jean-Pierre Raffarin highlighted a crucial point in 2003: “Central government cannot be responsible for success or failure in all parts of the country.” The realisation that the state is no longer all-powerful makes it easier to grasp the need for power to be shared among several levels of government, particulary when we consider the significant restriction of national sovereignty in the last few decades as a result of European and international integration on the one hand and the impact of globalisation on the other.

      123. It is therefore a logical, rational response on the part of central government to divest itself of certain functions and transfer responsibilities such as roads, public health, law and order, education, sanitation and welfare to regional (or local) units. There are several advantages to central government in having such functions dealt with at the regional level:

      · positive prospects for social and economic development;
      · as a rule, a reduced financial burden on central government;
      · less state responsibility in sectors that can be awkward or politically or financially “inconvenient”;
      · increased political and financial accountability for regions, considerably easing the strain on the central level and restoring its ability to steer the country politically.

      124. Better distribution of powers and responsibilities among several levels of government may also be the only way to preserve national unity if, owing to cultural, ethnic, language-related, religious or other distinctive features, the cohesion of the unitary state is under threat from separatist tendencies.

      125. Regionalisation thus serves as a test. Are those demanding greater regional autonomy in the name of democracy prepared to accept the same principles at national level? A concern to preserve national unity and a desire to increase regional self-government are opposite sides of the same coin: we want the state to be organised into different levels that can pursue all the policies necessary to safeguard national independence and security, the welfare and prosperity of the people and the principles of and constitutional machinery for exercise of power.

      4.4.2 National and regional interests

      126. A number of recent developments:

      · greater degree of self-governance for Catalonia;
      · the Spanish government’s intention to open negotiations with representatives of the Basque community;
      · the separation of Serbia and Montenegro,

      have heightened national politicians’ fears that regionalism and the resulting autonomy are a threat to national integritylxiii.

      127. Although the Congress addressed this concern of central governments in its draft Charter of Regional Self-Government by stipulating that regional entities must have due regard to national unity and integritylxiv, this has not been sufficient to dispel the doubts. But it may be that the reverse is true and that better distribution of powers and competences among several levels of government is the way to preserve national unity when, owing to cultural, ethnic, linguistic or denominational factors or other distinctive features, the cohesion of the unitary state is under threat from separatist tendencies. Belgium offers a particularly eloquent example. The country would not have been able to celebrate its 175th anniversary without its 25 years of federalism, which have seen the establishment of the regions and communities. Greater involvement in national, European and international affairs, increased inter-regional co-operation and the development of legal instruments for cross-border co-operationlxv force regions to conduct their trans-regional activities carefully and with due regard to common national interests.

      4.4.3 Position of business, industry and trade unions

      128. Centralisation is generally in line with the interests of business, industry and trade unions. One argument invokes the “nature of things:”

      “Economic disparities are normal and only become a cause for concern when individual shires experience economic deprivation. The “level playing field” argument fails to stand up because there will always be differences in available resources and talent. A homogeneous situation never has and never will exist.”lxvi

      129. If social and economic disparities derive from a natural law, as it were, there is no point pursuing a policy aimed at counteracting them by means of institutions. The regional level will never really be able to change the situationlxvii. Britain’s Office of the Deputy Prime Minister rejects this approach, however:

      “There are demonstrable differences in regions' economic performance, for different reasons, and a greater understanding of these and their underlying causes would allow regions, and therefore UK plc, to realise their economic potential.”lxviii

      130. It is therefore worth analysing the relative economic performance of regional entities. Even if one entity does not outperform another, it is useful to know whether it provides public services at lower cost.

      131. A second argument relates to the advantage to business, industry and trade unions of preserving country-wide legal and economic unity. This was a key argument, for instance, in the pay negotiations between German Länder and representatives of hospital doctors: regional pay agreements lead to lack of transparency, regional discrepancies, increased costs and less influence of centralised negotiating instruments.

      4.4.4 Relations between the tiers sub-national government

      132. The success of the regionalisation process also depends on governments’ ability to put in place an effective regional level of government without encroaching on local authorities’ rights and powerslxix. The preamble to the 1997 draft European Charter of Regional Self-Government was very clear in this respect:

      “7. Asserting that regionalisation must not be achieved at the expense of the autonomy of local authorities but must be accompanied by measures designed to protect such authorities and fully respecting what has been achieved through the European Charter of Local Self-Government”.

      133. It should be emphasised, therefore, that member states whose constitutions do not provide otherwise are free to adopt the following guidelines on relations between the local and regional tiers of government:

      · local authorities should be independent of regional authorities;
      · local authorities should not be hierarchically subordinate to regional authorities;
      · regional authorities should not exercise any supervision over local authorities.

      4.5 Driving forces for reform

      134. Regionalisation processes are political blueprints driven by political interests and pursued by means of institutional procedures overseen by the parliamentary political parties. To clarify and guide the Congress’s work it might therefore be useful to identify the driving forces behind and reasons for the changes which regionalisation and regionalism bring about in relations between different levels of government. In addition to specific analysis of the reforms in progress, the following factors are particularly relevant.

      4.5.1 Catalysts of reform

      135. The examples we have given of regional reform in the member states pinpoint at least the following catalysts:

      a) European institutions – structural cohesion policy

        e.g. new EU member states

      b) central governments – local/regional policy

        e.g. France, the United Kingdom, Turkey

      c) regional units – strengthening their respective roles

        German and Austrian Länder, Swiss cantons, Belgian regions, Spanish autonomous communities

      d) political parties – pro-centralisation or pro-regions
      e) second-tier local authorities – self-government and hierarchy

        United Kingdom counties, French départements, Italian provinces

      f) business, industry and trade unions – concept of legal and economic unity
      g) civil society and the citizen – democracy/increased costslxx
      h) the media.

      4.5.2 Reform models and political stances

      136. Among the directions taken by governments and political groups, it is possible to identify different forms of regionalisation, regionalism and regional self-government and classify them under various models of regional self-governmentlxxi according to the degree of autonomy and, above all, the legislative powers assigned to them. As regards political stances, reference should be made to the white paper “Your Region, Your Choice” (Cm 5511) published by the United Kingdom government in 2002lxxii, which set the scene for, and generated, heated debate on regionalisation in the United Kingdom, and also to French prime minister Jean-Pierre Raffarin’s address of 28 February 2003, which outlined his government’s regionalisation policylxxiii. Speeches such as that given by Romano Prodi on 19 February 2006lxxiv are worth noting as well.

      4.5.3 Motives

      137. The prospects of greater regionalisation or even of codifying regional self-government in a European-level legal instrument depend greatly on the attitudes of political players in member states to dividing up public authority among different levels of government. The secondary motives underlying regional reforms are extremely varied. Nevertheless, they may be grouped into a number of categories, such as:

      a) Strengthening of democratic principles
      Distributing powers among autonomous entities according to the principle of subsidiarity; ensuring transparency through judicious explicit distribution of powers among the different levels of government; allocating and clarifying responsibilities and hence upholding the fundamental principle of the separation of powers.

      b) Economic and financial aspects
      In order to ensure more effective government and administration should the state’s influence be increased or, on the contrary, should regions be given a greater role? Business and industry are generally in favour of centralising legislative decisionslxxv, while the European Commission sees a link between European competitiveness and regions’ attractivenesslxxvi.

      138. The European Commissioner for Regional Policy, Ms Danuta Hübner, has justified efforts to enhance regional self-government in the following terms:

      “My question is therefore: where can Europe find the energy to renew its capacity to obtain higher levels of change and growth? And here comes the role of the regions and local communities.

      The European renewal can and will come from below, from the regional and local level, and for this to happen strong leadership is essential at all levels of governance. We need efficient and effective multilevel governance systems.Several reasons make me think that growth has to come from below.

      - First, growth in Europe today critically depends on innovation.
      - Second, top-down strategies are alone insufficient and ineffective in order to ensure the real implementation of innovation on the ground.
      - Third, if innovation is to become a true driver of growth and competitiveness, proximity of partners – businessmen, researchers, local authorities, financial instutions – is essential. We must therefore free, mobilize, exploit and engage local potential of knowledge, expertise and cooperation.
      - And finally, in generating innovative thinking and innovative action, local and regional level has a clear comparative advantage.

      In conclusion, my answer to the question ‘where the energy for the renewal of Europe can come from?’ is that in order to make Europe an attractive place to invest in we must harness the local reservoir of knowledge and entrepreneurship.

      That is why the renewed regional policy is a key lever for boosting Europe’s growth and competitiveness.
      Why do I believe that the reformed regional policy can make the difference in our effort to boost Europe’s competitiveness? The answer lies to a large extent in the nature of the reform of this policy whose major elements include:

      - a reinforced subsidiarity by increasing devolution and taking into account the territorial dimension and specificities. In regional policy, clearly, there are no ‘one fits all’ strategieslxxvii.

      Partnership is a cornerstone of our method, which implies the participation not only of the national, regional and local authorities but also of the economic and social partners and other bodies from the civil society all through the process of negotiation and implementation;”

      139. Proponents of centralisation frequently deplore inadequate governance at regional level or weak regional exercise of powerslxxviii, drawing the conclusion that certain powers should be (re)centralised, or at least that affairs should be directed by central bodies in the national interest. As regards budgetary constraints, it is essential to rationalise territorial structure and even merge sub-national entities; this particularly applies to regional ones.

      c) Regional self-government: a matter for political negotiation
      The central level strengthens regional self-government by transferring powers or financial resources to the regions in order to gain their support for reform projects at national level, or vice versalxxix.

      d) Regional self-government: offloading of awkward or inconvenient central functions
      In many countries, the central level delegates powers and responsibilities that inconvenience it politically or financially (such as roads, public health, law and order, education, sanitation or welfare support). It thereby reduces its own responsibilities in those sectors and increases the political and financial accountability of the regionslxxx. For the regions such a transfer is a poisoned chalice. It adds to their array of powers, but also increases their financial burden. It would therefore be helpful to have a legal instrument laying down procedural rules for this kind of delegation. Otherwise, the conditions for voluntary transfers of this nature need to be negotiated by means of a contract between the state and the regions.

      4.5.4 Constitutional framework

      140. National constitutions play an important part in determining which responsibilities must be allocated to which level of government. Certain horizontal constitutional rules require either decentralisation or centralisation of tasks; this applies, for example, to requirements concerning national, legal and economic unity or the obligation to ensure an equivalent or at least comparable standard of livinglxxxi. The question then arises of who can apply to have the rule enforced, and in what circumstances. The mechanisms involved in co-operation between different levels of government require closer analysis to ascertain whether they work in favour of centralisation or decentralisation.

      4.5.5 Distinctive characteristics of transitional member stateslxxxii

      141. Given that there are clear differences between west and east European countries in terms of the development of regional self-government, any survey of regionalisation mechanisms needs to divide countries into several groups:

      a) western Europe;
      b) new EU member countries, Romania and Bulgaria;
      c) other east European and south-east European Council of Europe member states.

      142. The pace and intensity of the transformation process in new Council of Europe member countries have everywhere had geo-structural consequences: as virtually none of those countries had local or regional self-government, the extent of territorial reform has been much greater than in the original member states, particularly in respect of the regional level. Institutionally speaking, this level of government started from scratch. It was also exposed to competition from outlying departments of state administration. Lastly, the need to restructure the country, build up adequate capital and boost economic development impeded the establishment of sub-national entities, which were regarded as a “luxury”.

      143. EU institutions have had a fairly marked influence on the direction and magnitude of regional reforms. While EU policy in the internal market sector basically tends towards centralisation, the structural funds policy is more supportive of partnerships between the EU and the regional level. In the case of new EU member countries, pressure from the Commission – as part of “strengthening of institutions” – to set up entities for implementing regional policy has had a direct influence on government decisions concerning the administrative fabric. The effects of European integration on regional self-government therefore need evaluating more closely.

      144. Influence of Council of Europe activities is less obvious. However, the policy of monitoring local and regional democracy undoubtedly has an impact on debate about regionalisation and local self-government.

      4.5.6 Scientific approach to good governance

      145. Although the influence of research on central reforms concerning regional self-government is fairly limited, the role of “good governance” and regional taxation theory are a special case. Research highlights the following aspects in particular:

      a) distributing powers and responsibilities between the central and regional levels so as to ensure optimum provision of public services while taking into account public expectations;
      b) creating complementarity between entities at different levels and leaving some margin for action by the private sector so as to take advantage of competition between sectors. In this respect, privatisation can play an important role as an alternative to regionalisation/regionalism;
      c) rationalising sub-national structure in line with effectiveness and efficiency of public services and so as to minimise administrative costs;
      d) evaluating the economic and fiscal impact of increased international competition on sub-national entities.

      4.5.7 Role of elites

      146. The division of power between the central and regional tiers is greatly influenced by the behaviour and role of governmental and administrative elites at both levels of government. Job numbers and cuts, speed of promotion, managerial powers, how large an internation dimension there is, the durability of political influence, the strength of relations with the private sector and the financial provision for staffing are all factors that play a decisive role in the distribution of tasks between different levels of government. Consideration should also be given, therefore, to the positions adopted by public servants’ associations. It should be noted that highly regionalised or federal systems offer better political career opportunities at national level to the (ministers-) presidents of regions or Länderlxxxiii.

      5. The Congress’s draft Charter of Regional Self-Government of 1997 and the reasons why the member countries refused to accept it

      5.1 The key components of the 1997 draftlxxxiv

      147. The Congress’s work on regional self-government began with an existing Council of Europe legal instrument, the European Charter of Local Self-Government of 1985lxxxv. The definition given in that Charterlxxxvi served as a starting point for the Congress's work in the field of regional self-government.

      148. The Mildon report "state of progress of work on the draft Council of Europe Convention on Regional Self-Government"lxxxvii drew up a list of the different stages of codification of the draft Charter. This work was based on the following considerations:

      a) The Congress voted for legal coherence with the local Charter. European-level guarantees for regional self-government should not fall short of those for the local tier of authorities.
      b) The Congress is committed to regional self-government combined with respect for national unity, territorial integrity and regional diversity in member states.
      c) The Congress calls for the adoption of basic standards, with guarantees concerning at least self-government, powers, organisation, finances, participation by the regions in national and European affairs, and interregional co-operation.
      d) The Congress wishes to strengthen the legal status of the regions by means of action complementary to that of the European Union. The latter wishes to strengthen regions' rights through a new subsidiarity protocol. The Council of Europe can this approach with a regional charter, which is not possible at European Union level.
      e) The Congress has obtained unanimous support for its draft Charter from the Parliamentary Assembly and the EU Committee of the Regions.lxxxviii

      149. The Congress’s draft was broadly characterised by the following features:

      · It was very closely tied up with the Council of Europe’s Charter of Local Self-Government of 1985.
      · It was to be valid for practically all the member states and so there was a very low level of differentiation.
      · It was based largely on an advanced concept of regionalisation, of a type in which regions had legislative powers.
      · It put the emphasis predominantly on the rights of regional bodies and less so on their duties in a national and European context.
      · Despite containing an open-ended clause in favour of regional development, it did not include a sophisticated programme for countries in the process of regionalisation.

      5.2 Work of the Helsinki and Budapest ministerial conferences

      150. The Congress’s draft Charter on Regional Self-Government has not yet been approved by the Committee of Ministers. At the Conference of European Ministers responsible for Local and Regional Government held in Helsinki in 2002, the ministers agreed on the feasibility of a legal instrument dealing with the basic components of regional self-government. However, the member states could not agree on whether this instrument should be adopted in the form of a binding convention or a non-binding recommendation. Despite the differences of opinion, the conference took the CDLR’s intensive preparatory work as its basis and adopted the basic concepts of regional self-government and the outlines for six different models of regional self-government.

      151. Another attempt to adopt a legal instrument failed at the 2005 ministerial conference in Budapest. The Committee of Ministers of the Council of Europe instructed the CDLR to produce a substantial report on new developments in member states in the regional self-government field, focusing in particular on innovations and any problems common to several states, with a view to presenting this document to the 15th session of the Conference.

      5.3 Basis for the reservations of some member states concerning a legal instrument guaranteeing the key elements of European regionalism

      152. Despite parallel political approaches in other Council of Europe or European Union bodies, it has not been possible up till now to adopt an instrument guaranteeing regional self-government within the Council of Europe. The prospects for success of new political approaches therefore depend considerably on a proper awareness of the reservations and hesitations of member states.

      153. The struggle to draw up a draft European Charter of Regional Self-Government has showed that some member states are hostile to the adoption of such an instrument or at least have reservations. It is therefore in the Congress’s interest to look closely at the reasons behind the reservations expressed so that it may better organise its future action.

      154. Member states' positions on regional self-government fall into two categories. The first category includes states that voiced clear and definite opinions at the CDLR meetings or the Helsinki and Budapest conferences. The second includes states which did not express an opinion, did not spell out their reservations or expressed views in fairly diplomatic terms but which still supported the final resolutions of the Helsinki and Budapest ministerial conferences.

      155 . The ongoing debate in the Council of Europe on the necessity for and type of Council of Europe legal instrument guaranteeing the key elements of regional self-government has revealed differences of approach among member states, which may be classified under five heads:

      a) member states in favour of creating a legal instrument at European level, preferably in the form of a European Convention;
      b) member states in favour of creating a legal instrument at European level in the form of a recommendation ;
      c) member states in favour of the legal protection of regional self-government at national level and
      d) member states prepared to settle for a solemn declaration;
      e) member states tending to be “neutral” or undecided.

      156. Nevertheless, the most important reservations may initially be categorised as follows:
      a) Legal constraints at European level are generally opposed because of a desire to defend national sovereignty and determine the content and scope of regional self-government.
      b) National governments have reservations in particular about codifying regional self-government because they are having unfortunate experiences with regionalisation or have been faced with ineffective or uneconomic use of powers by regional authorities.
      c) There is a fear of risks to national integrity from over-development of regional self-government, and wariness of separatist tendencies. Concern to maintain national unity and equality is therefore paramount. It is claimed that national constitutional obstacles limit the scope of the regional self-government concept.
      d) Governments envisage the adoption of rules at national level ensuring unity of the law and the country's economic unity. A European legal instrument on regional self-government would hamper such legislation.
      e) Central bodies wish to retain control of the main lines of economic and political development in the national interest, especially in the transition countries. From this point of view, regionalisation is "for later", a semi-luxury that demands an advanced and mature civil society and corresponding economic and political conditions.
      f) Concern exists about possible fragmentation of national policy resulting from increased competition among regional bodies, with a concomitant risk of loss of political cohesion.
      g) There is a fear at central level of losing financial resources to regional bodies or of having to share resources with them, and in the case of European funds of forfeiting the right to influence the content of programmes.
      h) National reforms with obvious implications for the regional level are in progress and would risk being harmed/delayed/influenced by an international legal instrument.
      i) National governments are reluctant to approve a binding legal instrument like the Congress draft because it could be used as a model for purposes exceeding their national ambitions; certain countries see a danger of such an instrument opening the way to a type of regional development which they are not prepared to follow, at least not now or so intensively.
      j) There is essentially political resistance in the concern that current or planned national reforms may be thought limited in comparison with the potential offered by the Congress's draft Charter.
      k) National elites and staff of outlying central units fear losing influence as a result of the increased importance of regional self-government institutions. Drops in salary are feared because of lower pay at regional level.
      l) There is particular uncertainty about the financial and administrative consequences of regional reform, and also about the need for an overall adjustment of relations between the state, regions and local authorities. Such a process is expensive and time-consuming and absorbs much of the energy of the political class.

        m) Central governments are wary of the influence which regional governments would exert on complex issues. It appears to be more fashionable to seek national responses to globalisation issues than to believe in the effectiveness of decentralisation and subsidiarity.
        n) Disappointed in the current direction of European integration, national governments are tempted by a return to national values.
        o) The central level fears that, once established, a new level of government wil be irremovable.

      157. The importance of the above considerations must therefore be demonstrated as clearly as possible in analysing the development of regional self-government in the countries used as examples.

      5.4 Lukewarm acceptance of regionalisation by civil society and the media

      158. The misgivings of government representatives with regard to regional self-government are felt to a greater extent by large sections of the public and the media. It seems understandable therefore that political leaders should react cautiously to all of the Congress’s proposals to enhance regional democracy, considering that the public has major reservations.

      159. To take a few recent examples, the media, commenting on the outcome of the Italian referendum on the Constitution, the separation of Serbia and Montenegro and the new Catalan Constitution, made several significant claims:

      · regionalisation/federalisation has failed (in the case of Italy);
      · regionalisation/separation fuels crime (in the case of Serbia and Montenegro);
      · regionalisation/greater regional autonomy is a waste of time (in the case of Catalonia) or a step towards the “Balkanisation” of Spain.

      160. In the case of Italy, the media concentrated on a number of particularly sensitive aspects: co-operation and competition between northern and southern regions, increased complexity and greater bureaucracy as a result of an insufficiently transparent allocation of powerslxxxix.
      161. Concerning the separation of Serbia and Montenegro, there was a prevailing fear that the reduced size of the future entities would mean that they were no longer able to counter all forms of organised crimexc. Other media comment, however, emphasised the huge effort that would be required of the new Montenegrin government if there was to be any real chance of EU accessionxci.
      162. The debate on upgrading the status of Catalonia was summarised as follows:
      “‘After a long, complex, tense and exhausting process, finally it is reaching its end,’ the paper writes in an editorial on its website.
      The paper argues that the new constitution establishes a list of rights and duties for the first time, as well as laying out an advanced social model for the region. Maybe so, but according to Dr Muro, sorting out the constitution has taken most of the political energy and time of the Catalan government over the past two years.
      “‘The parties are desperate to show they have done something. Other areas of government need attention, like education and health. I think people will vote in favour in the referendum but they'll really just want to get it out of the way so the government can move on to other things.’”xcii

      163. On the other hand, many commentators wondered whether the 18 June referendum in Catalonia might not be a prelude to the country’s disintegrationxciii. Others have criticised moves by the advocates of regionalism in Spain to increase the degree of autonomy in areas which they believe to be unsuitable for regionalisation.xciv

      6. Outline of a new approach by the Congress to promote the codification of regional self-government

      164. If the Congress and the member states remain deadlocked over the adoption of a legal instrument based on the draft submitted by the Congress in 1997, the Congress should be looking into other suitable legal and political approaches for finally achieving an acceptable result with regard to the strengthening of regional democracy in the Council of Europe member states. For this purpose, it can make use of various legal and political elements stemming from current reforms at regional level. It can therefore base its work on the following three questions:

      · Are there elements in the legislation of the European institutions or the member states of the Council of Europe which work in favour of a legal codification of regional democracy?
      · Does European law provide the Congress with different codification options?
      · What economic and political arguments are there in favour of codifying regional democracy?

      6.1 Legal protection of regional democracy at European level

      165. Despite the complexity of the above-mentioned reservations about a legal instrument for regional self-government, the work of the Committee of Ministers, the CDLR and the Helsinki and Budapest conferences has nevertheless moved the political discussion and legal approach forward. The Helsinki declaration on regional self-governmentxcv recognised the necessity of a legal instrument when it stated that:

      “11. The Council of Europe should recognise and promote common principles on regional self-government in a European legal instrument which takes into account member states' experience”.

      166. It also established certain core concepts and common principles of regional self-government identified by the CDLR. A political declaration, it nevertheless has legal value because it defines, for the member states at least, the minimum guarantees attaching to regional self-government.

      167. In addition, the CDLR has started standardising regional self-government models. The different developments in the member states can now be classified according to the six regional self-government models adopted at the 13th ministerial conference in Helsinkixcvi xcvii.

      168. It is therefore clearly important to examine legal documents existing or in preparation at European Union or Council of Europe level that contain legal guarantees for the regional level as a whole or for certain regional self-government sectors. The case-law of the European Court of Justice (including the Court of First Instance) also needs careful study to ascertain whether the status of local and regional authorities is guaranteed by the EU court.

      169. Should the legal situation of sub-national authorities, particularly regions, be strengthened as a result of developments in primary Community legislation (at the institutional level), secondary Community legislation (at the political level) or the case-law of the EU’s organs, the obstacles to Council of Europe adoption of a legal instrument on regional self-government will be more easily overcome. It would probably be inconsistent for a member state to accept European or international rules giving guarantees to regional entities in some areas of EU law and oppose a comprehensive legal instrument on regional self-government at Council of Europe level.

      6.1.1 European Union primary legislation
      170. The Maastricht Treatyxcviii contains at least three items that might affect the scope of legal protection of local and regional authorities:
      171. Article 203xcix opens the way for regional ministers, where they exist, to take part in Council meetings. However, they would be attending on behalf of their member states so the right involved does nothing to strengthen their regions’ legal standing.
      172. The same applies to Article 263 (“Committee of the Regions”c) and Article 5ci (“Principle of subsidiarity”). The Committee of the Regions is an advisory body which until now has had no right to petition the Court. From a legal standpoint, the principle of subsidiarity comes into play only between the European Community and member states.

      173. Declaration No. 3 by Germany, Austria and Belgium on Subsidiarity, appended to the Treaty of Amsterdamcii, does not alter this assessment: no regional authority in those countries has brought a Court of Justice action against the EU for infringement of subsidiarity. Even if the Court decided that authorities had been directly affected, the decision would apply only between the parties concerned.

      174. As regards European Union draft primary legislation, mention should be made of the draft Treaty establishing a Constitution for Europe. Paragraph 4 of the preamble statesciii:

      “Convinced that, thus 'united in its diversity', Europe offers them the best chance of pursuing, with due regard for the rights of each individual and in awareness of their responsibilities towards future generations and the Earth, the great venture which makes of it a special area of human hope”.

      175. The preamble is supplemented by Article I-5civ, which provides that the EU must respect its member states’ fundamental institutions, “inclusive of regional and local self-government”, which necessarily implies acceptance of the principle of regional self-government under European law.

      176. Lastly, paragraph 1 of the preamble to Part II, "The Charter of Fundamental Rights of the Union”, states:

      “The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values.”

      177. Paragraph 3 is worded as follows:

      “The Union contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member states and the organisation of their public authorities at national, regional and local levels; it seeks to promote balanced and sustainable development and ensures free movement of persons, goods, services and capital, and the freedom of establishment.”

      178. A system with three tiers of government, combined with respect for diversity, therefore safeguards values which the EU upholds. That entitles regional self-government to legal protection at both the national and European levels.

      179. To this overview of legal instruments at EU level can be added Article I-1, paragraph 3cv:

      “3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence the Union shall act only if and insofar as the objectives of the intended action cannot be sufficiently achieved by the Member states, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level”

      and Article 8 of the Protocol on the Application of the Principles of Subsidiarity and Proportionalitycvi, which allows both the "regional" chambers of national parliaments and the Committee of the Regions to bring actions before the European Court of Justice for infringement of the principle of subsidiarity.

      180. As the principle of subsidiarity protects areas of jurisdiction of member states and their regions (if the latter are entitled under the distribution of powers in domestic law to legislate in matters of European legislation not exclusive to the EU), the EU guarantees through the principle of subsidiarity a key ingredient of regional self-government, namely the power to legislate at regional level, and effective protection of that power, on matters transferred to the regions by member states.

      6.1.2 European Union secondary legislation

      181. As an example of the legal recognition of the regional level in EU secondary legislation we may mention Article 8 of Council Regulation (EC) No. 1260/1999 of 21 June 1999 laying down general provisions on the structural fundscvii, which concerns complementarity and partnershipcviii. The establishment of a partnership covering "the preparation, financing, monitoring and evaluation of assistance" must be in keeping with the powers and responsibilities of regional and local authorities in the areas mentioned.

      182. The European Parliament adopts the same approach with regard to the structural funds. Amendment 9cix to the proposal for a Council decision on Community strategic guidelines for rural development (Programming period 2007-2013) (COM (2005) 0304-C60349/2005-2005/0129 (CNS)) inserts a reference to the regional and local levels with a view to broadening the aims of a key EU policy – the CAP – by including, among other things, the idea of competitiveness and sustainable development at the regional and local levels.

    61. The 2003 and 2004 CAP reforms represent a major step forward to improve the competitiveness and sustainable development of farming activity in the EU and set the framework for future reforms. Successive reforms have boosted the competitiveness of European agriculture by reducing price support guarantees. The introduction of decoupled direct payments encourages farmers to respond to market signals generated by consumer demand rather than by quantity related policy incentives. The inclusion of environment, food safety, animal health and welfare standards in cross-compliance reinforces consumer confidence and increases the environmental sustainability of farming.

    The 2003 and 2004 CAP reforms represent a major step forward to improve the regional and local competitiveness and sustainable development of farming activity in the EU and set the framework for future reforms. Successive reforms have boosted the competitiveness of European agriculture by reducing price support guarantees. The introduction of decoupled direct payments encourages farmers to respond to market signals generated by consumer demand and the needs of society rather than by quantity related policy incentives and the practice of intensive farming. The inclusion of environment, food safety, animal health and welfare standards in cross-compliance reinforces consumer confidence and increases the environmental sustainability of farming.

      183. This amendment, proposed by the Parliament’s Regional Development Committee, appears to have been prompted by a concern to see local and regional authorities derive greater benefit from the positive impact of the Common Agricultural Policy. The Parliament did not wish this amendment to be confined to the CAP guidelines, but to be inserted into the regulation itself. The amendment was rejected by the Council, howevercx.

      184. Another proposal is set out in the Committee of the Regions opinion on the Proposal for a Directive of the European Parliament and of the Council for enhancing port security (2005/C 43/08)cxi. The Committee wanted to widen responsibility for port security by extending it to local and regional authorities, thereby implying recognition of their legal jurisdiction.

      Recommendation 4
      Recital (8)

    Text of the Commission proposal

    CoR amendment

    Member States should ensure that responsibilities in port security are clearly recognised by all parties involved. The Member States should monitor compliance with security rules and establish a clear responsible authority for all their ports, approve all security assessments and plans for its ports, set and communicate security levels, ensure that measures are well communicated, implemented and coordinated, and provide for enhancing the effectiveness of security measures and alertness by means of a platform for advice within the port community

    Member States should ensure that responsibilities in port security are clearly recognised by all parties involved, including appropriate local and regional authorities. The Member States should monitor compliance with security rules and establish a clear responsible authority for all their ports, approve all security assessments and plans for its ports, set and communicate security levels, ensure that measures are well communicated, implemented and coordinated, and provide for enhancing the effectiveness of security measures and alertness by means of a platform for advice within the port community

      As in the aforementioned case of the CAP, the Council rejected this proposal by the Committee of the Regionscxii.

      6.1.3 Guarantee of participation by the regional and local levels in the implementation of Community policies

      185. In a Parliamentary Question of 12 December 2003 (E-3833/03), Mr Bigliardo asked whether the Italian provinces would be involved in managing the structural fundscxiii. The Commission approved the principle that

      "… the administrative authorities in charge of Operational Programmes must, if they are to ensure that the partnership principle is correctly and effectively applied, associate the local authorities in partnership if national rules require them to do so or if they consider it advisable to do so. This entails setting appropriate consultation procedures."

      186. This of course includes the reservation “if national rules require them to do so”. However, if member states’ domestic legislation provides for the regions' involvement, the content of the legal guarantee of the authorities' participation depends on Community law.

      6.1.4 Case-law of the Court of Justice of the European Communities and the Tribunal of First Instance concerning the status of local and regional authorities within the Community legal system

      187. The case-law of the Court and Tribunal concerning local and regional authorities in the member states is fairly clear:

      “It is for all the authorities of the Member states, whether it be the central authorities of the state or the authorities of a federal state, or other territorial authorities, to ensure observance of the rules of Community law within the sphere of their competence. However, it is not for the Commission to rule on the division of competences by the institutional rules proper to each Member state, or on the obligations which, in a state having a federal structure, may be imposed on the federal authorities and on the authorities of the federal states respectively. It may only verify whether the supervisory and inspection procedures established according to the arrangements within the national legal system are in their entirety sufficiently effective to enable the Community requirements to be correctly applied.”cxiv

      188. Nevertheless, Levrat’s in-depth analysis of the relevant Court and Tribunal judgmentscxv highlights gaps and contradictions in Community case-law in this area. The conclusion is obvious, however: local and regional authorities are not yet legal persons in their own right within the Community legal system. As components of the member states, their rights generally derive from the status of the latter, and their legal personality before the Court is limited by the restrictions set out in Article 230 (4) ECcxvi. As a result, existing Community law does not yield any weighty arguments in favour of strengthening the legal status of regions at the Council of Europe level.

      189. Rather, the Congress must pin its hopes on adoption of the draft Treaty establishing a Constitution for Europe, Article I-5 (1) of which provides that the European Union must respect member states’ fundamental institutions, including local and regional self-government – which necessarily implies acceptance of the principle of regional self-government in European law. Since the organisation of public authority into three levels of government, with due regard for diversity, is a guarantee for Community values, regional self-government merits legal protection at the regional, national and European levels.

      6.2. Alternative means of protecting regional self-government

      6.2.1 New recommendation/resolution

      190. The work by the Congress could give rise to a new resolution on the prospects of regionalism in Europe. To consolidate the numerous Congress recommendations and resolutions on regional democracy, it would be better to adopt a short declaration at the Valencia conference grouping together the proposals on development of regional self-government and stating specific requirements.
      Another – medium-term – approach involves drawing up a non-binding European code of subsidiarity and local or regional self-governmentcxvii. This would set out the policy positions of locally/regionally focused European institutions regarding regional self-government and provide member states with guidelines for their policies on local and regional authorities.

      6.2.2 Review of the European Charter of Local Self-Government

      191. The Congress report by Mrs Halvarssoncxviii analysed the operation of the Local Charter 20 years after its adoption by the Council of Europe. She found several examples of the use of the charter in the member states, which are indicating an interest in having it revised. The development of actual local democracy exceeds certain guarantees in the charter, which is therefore too restrictive. On the other hand, certain member states interpret the guarantees in the charter restrictively, which affects the charter's self-identification. If the Charter is recast, a second part could concentrate on regional self-government, thus grouping together the two elements of territorial self-government in the same text.

      192. However, the difficulties of such an approach are easy to see. Not all parties involved accept the necessity of a review. Combining it with a text on regional self-government would introduce considerable political and legal complexity. Differences of opinion on the need for a legal instrument on regional self-government would be reflected in the Charter. The project would ultimately risk complete failure, and this would affect the section on local democracy. As a body attempting to unite the basic interests of the two types of territorial community, the Congress has no interest in damaging a key pillar of local democracy.

      6.2.3 Additional Protocol to the European Charter of Local Self-Government

      193. Local and regional authorities are united in their interest in promoting democracy at the two levels concerned. The Congress has therefore unanimously approved the draft Charter of Regional Self-Government. An additional protocol on regional democracy could therefore be added to the local charter. However, the same doubts remain despite the split into two different legal instruments, namely that the disagreement on the regional legal instrument might be carried over to the local charter and jeopardise the existence of that instrument. Furthermore, proposing an additional protocol to the local charter is not politically acceptable, especially in regions having power to manage local affairs. Such regions would find it difficult to agree to their interests being governed by an additional protocol to the Charter of Local Self-Government.

      6.2.4 Conclusion of a convention on the basis of international law outside the Council of Europe

      194. At the meeting of the Congress Working Group on Regions with Legislative Power in October 2005, Mr Van Staa proposed consideration of the Alpine Convention of 7 November 1991. Under that Convention seven European nations (currently eight) and the European Community concluded a collaboration contract having the following general obligations:

      195. The Alpine Convention is a framework contract governed by international public law which requires the nine partners to pursue the following aims:

      “The Contracting Parties shall pursue a comprehensive policy for the preservation and protection of the Alps by applying the principles of prevention, payment by the polluter (the 'polluter pays' principle) and co-operation, after careful consideration of the interests of all the Alpine states, their Alpine regions and the European Economic Community, and through the prudent and sustained use of resources. Transborder co-operation in the Alpine region shall be intensified and extended both in terms of the territory and the number of subjects covered.”

      196. Technical protocols establish specific obligations to protect and develop the Alps in a sustainable fashion.

      197. The idea behind the Alpine Convention could, of course, be transferred to the area of regional democracy. However, there are particular aspects that militate against a simple analogy of this nature.

      a) The subject of the Convention is geographically tailored to very specific territory, with a limited number of partner states, all of which have ratified the Convention. A convention on regional self-government involving only a handful of members would limit the scope of self-government.

      b) The specific obligations are not stipulated in the Convention itself but in additional protocols. However, a legal instrument on regional self-government would have to include all aspects ensuring vigorous regional self-government. If we simply accept limited framework rules, the content of regional self-government will be dissipated.

      c) The Alpine Convention sets up a special implementing administration. The administrative units responsible for promoting regional democracy would have to be concentrated to prevent fragmentation and high costs.

      198. Despite these differences, it is recommended that a study be carried out of the advantages and disadvantages of transferring the model as it stands.

      6.3 Development of a new legal instrument by the Congress in 2007

      199. The Congress has so far concentrated on codification of self-government in an appropriate legal instrument. Given the ministerial conference’s agenda, which calls for legislation at least in the area of subsidiarity, the Congress must continue to pursue this objective. We are invited to move ahead with our draft Charter of Regional Self-Government, bearing in mind the current state of debate within the Council of Europe.

      200. The Congress’s work on regional democracy will probably have to involve a whole array of instruments. Among other things any initiatives will have to take into consideration the reservations expressed at national level regarding a legal instrument. Furthermore, economic, social and political changes in the context of regional democracy since 1997 require the draft to be radically altered. Several changes are required:

      201. 1) The responsibility of regional entities must be increased with a view both to enhancing regional democracy and to upholding national unity and integrity. The duty of regional entities to uphold national unity could be added to the operative provisions of the Charter.

      202. Given that the reservations expressed about regional self-government are partly the result of central authorities’ desire to retain control over major economic and political policy objectives in the national interest, we must find a way of ensuring that political decisions taken at the national and regional levels are coherent in terms of both procedure and substance. This is particularly necessary in respect of the budgetary and fiscal behaviour of regional entities and decisions concerning certain key sectors (the economy, education, social affairs, health and infrastructure).

      203. 2) Adjusting the text of the Charter according to the degree of regional self-government, in line with the types/models of regionalisation in the member states concerned.

      204. The Congress’s 1997 draft Charter adopted an overall approach, laying down common rules irrespective of the actual status enjoyed by regions. The current debate prompts us to take a different tack: we must begin by trying to establish a common core of general rules reflecting shared values and the actual situation of regional democracy, based on the experiences of member states.
      .
      205. After this outline of the motives and aims underlying current regional developments it is necessary to summarise and group the developments to identify a “common core” or similar trends. It is particularly important to highlight developments common to a number of member states since the Budapest conference stipulated that only developments of that nature were to be taken into consideration (as did the terms of reference issued by the Committee of Ministers on 11 May 2005).

      206. To do this, we may be guided by a number of key parameters listed below, which are typical enough to serve as a yardstick for assessing the direction of reforms at the regional level and the degree of regional self-government.

      207. Most of the reforms carried out in the member states given as examples have at least some impact on the following aspects:

      a) the definition, scope or degree of regional self-government;
      b) the allocation of, and conditions for exercising, powers while respecting the principle of subsidiaritycxix;
      c) the structures and means of action of constitutional institutions;
      d) procedures for consultation/co-operation/co-ordination between levels of government provided for in the Constitution, legislation or administrative procedures, along with regions’ participation in national affairs;
      e) financial relations (horizontal and vertical)cxx;
      f) national or regional administrative structurescxxi;
      g) the status and pay of officials;
      h) legal controls on regional self-government;
      i) inter-regional co-operationcxxii;
      j) participation by regions in European integration processes.

      Particular emphasis should be placed on the compatibility of national reforms with Council of Europe texts (conventions/recommendations/resolutions).

      208. The next stage is to define specific rules for respecting diversity at regional level for at least four different types of regional self-government:
      - the regions of federal states;
      - regions in highly decentralised states with special autonomous statuses;
      - regions in states with co-operation arrangements between different local and regional entities;
      - countries in transition.

      209. Quite apart from the fact that most of the reforms touch on one or more of the aforementioned classification parameters, a structural difficulty remains. The development of regionalisation, regionalism and regional self-government in member states so far shows that the driving forces and aims of the reforms are many and varied in most cases and fall under several parameters. It is therefore desirable to locate the reforms’ "centre of gravity", using the above criteria. In addition, reforms are frequently not the result of a homogeneous, coherent or long-term government action plan alone, but are dictated by circumstances. For instance, shortcomings in “governance” between the various tiers of government or social and economic disparities between different parts of the country may result in votes in favour of strengthening the regional level, which political leaders must then incorporate into national legislation. The current debate in Italy is an example of such developments. The success of regional reforms also depends on the majorities within the parliaments concerned, which reflect the results of national and regional elections.

      210. 5) Making regions accountable for European integration processes.

      211. Large regions in federal or highly decentralised states are increasingly developing their European-participation instruments. Nevertheless, it is in the interests of member states to maintain a degree of consistency of action. It goes without saying that greater integration at the regional level entails reciprocal obligations. The obligation on regions to have due regard to states’ interests could be modelled on the requirements deriving from the European Union’s Stability Pact.

      212. 4) Making the experimentation clause more specific.

      213. The experimentation clause – Article 23 of the 1997 draft Charter – is probably too general. The circumstances in which countries may depart from the provisions of the Charter could be broadened without losing sight of its purpose, which is to ensure the eventual introduction of a certain degree of regional self-government.

      6.4 Supplementing the legal work through political action by the Congress

      6.4.1 The 2005 Ministerial Conference in Budapest advocates “good governance”

      214. The Budapest ministerial conference placed questions of regional self-government in the wider and paramount context of "good local and regional governance"cxxiii. It decided:

      “1. to make ‘delivering good local and regional governance’ an essential objective to be pursued by member states in order to respond to the challenges facing our societies and meet the legitimate expectations of our citizens”.

      215. The reasons for this approach can be found especially in point VII of the introduction, although the nature of the "number of challenges and demands” is not specifically defined:

      “vii) Note that our countries are confronted at national and European levels with a number of challenges and demands that concern in particular the capacity of local and regional authorities to deliver high-quality services and respond adequately to the legitimate expectations of citizens, the congruity between local and regional authorities’ competences and resources, the interest and involvement of citizens in public affairs at local and regional level, the development of co-operation between local and regional authorities, including across national borders”.

      216. The Budapest conference deduced from these aims an "agenda for good local and regional governance" which contains a number of elements of regional relevance as follows:

      a) Principle of subsidiarity
      “Giving full effect to the principle of subsidiarity by defining and legislating on the competences, structures and boundaries of local and regional authorities;”

      b) Relations between different levels of territorial administration
      “Fostering effective relations between different levels of territorial administration particularly between central and local authorities.”

      217. The proposed action nevertheless remains fairly general:

      “To monitor developments in regional self-government with a view to identifying in particular innovations and any issues common to a number of states,”

      and requires more concrete implementation over the coming months on the basis of the results of the questionnaire drawn up by the CDLR at the end of 2005.

      218. In any case, the result of the Budapest terms of reference is that the CDLR as the institution preparing for the Valencia conference will place special stress on the following aspects:

      a) How is "good governance" to be defined?cxxiv
      b) How can the distribution of competences between different levels of government be improved so as to guarantee to the public a better "performance" in the implementation of a policy while respecting the principle of subsidiarity?
      c) Can intergovernmental agreements be concluded on good governance? What would be the key elements of such agreements?
      d) Can criteria be developed for deciding the quality, effectiveness and efficiency of public services?

      219. It goes without saying that the Congress will follow this approach closely since it has long been endeavouring to strengthen "good governance"cxxv. The "governance" approach is also fully compatible with the work on strengthening the legal structures of regional self-government. To take the "governance" analysis in the conclusions of the informal Council of EU Ministers meeting in Bristol in December 2005cxxvi,

      “good governance is characterised by the five principles of openness, participation, accountability, effectiveness, and coherence”,

      at least three of these criteria: "accountability, effectiveness and participation" are identical with the definition of regional self-government in the final conclusion of the Helsinki ministerial conferencecxxvii. The principle of coherence is rooted legally in Article 3 paragraph 1 of the Treaty on European Unioncxxviii and is therefore binding on states which are members of the two European institutions.

      220. As regards the principle of "openness", this apparently concerns a demand relating to the exercise of power by the competent levels of government. Openness, whether to public demand for participation, to other levels of government or to key civil-society organisations, is part of the principle of democracy.

      221. The provision of "good governance" therefore rests on existing or underlying legal guarantees. Alternatively, it implies the necessity of legal codification to ensure complete and binding application of the principle. "Good governance” that remains voluntary does not comply with the aims set by the EU Council of Ministers at their Bristol conference.

      6.4.2 The Congress adopts a political position on regional democracy

      222. The six models of regional self-government identified by the Helsinki conference mainly involve a static analysis of the legal frameworks for regional self-government in the member states. As a result, they no longer reflect the real state of regional democracy in Europe. As the Budapest conference widened the perspective on regional self-government by emphasising "good local and regional governance”, we need to amplify these models politically and economically so as to take in all of regionalism’s complexities and try to develop a common “philosophy” for the regional level in the medium term.

      223. As well as adjusting its legal instrument, the Congress could develop a model of regional self-government reflecting the current discussions on future sub-state relations between authorities at different levels, particularly in the light of the concepts of solidarity and individuality of state and regional entities.

      224. Three different ways of organising regional authority may be envisaged in order to reflect the realities of regional self-government in the countries given as examples:

      a) competitive regionalism;
      This model is characterised by greater freedom for sub-national units (e.g. federated states and cantons) to compete with one another on the basis of their own powers, their own tax systems and their discretionary powers, particularly as regards economic, social, cultural and educational measures, and administrative self-organisation.
      Those who advocate this type of organisation of regional self-government claim that it leads to increased innovation and levels of economic activity and tax revenue, all of which increase GDP and the spending power of their populations. The long-term impact of the model is greater differentiation of standards of living between regional entities depending on their differing levels of social and economic development. The main indicators of the degree of competitiveness are the degree of absence of horizontal constitutional standards, in terms of uniform national minimum standards of living, a precise distribution of responsibilities between different tiers of government, the degree of fiscal capacity, the extent of institutional independence and co-ordination procedures.

      225. b) Solidarity-type regionalism:

      This model is characterised by a high degree of solidarity between local and regional entitiescxxix. Generally, the constitution determines the level of qualitative and financial equalisation, or at least the procedures for the transfer of resources between entities. The effects of solidarity may operate in different ways depending on whether the model adopted is a vertical one (redressing the balance between central government and the regions), a horizontal one (redressing the balance between regional entities) or a blend of the two. This model usually requires considerable standardisation in the area of powers and a concentration of legislative powers in respect of tax. The result is a strong levelling out of powers and tax systems between regional entities and efficient systems of financial equalisation. The social and economic advantages of this model are often a very high degree of homogeneity throughout the country, equivalent standards of living, little migration between states and the absence of pronounced social conflict. The drawbacks are institutional complexity, slow co-ordination procedures and delays in carrying out essential reforms. As the slowest entity determines the speed at which legislation is enacted, this model can make the whole country less competitive on the international front.

      226. c) Co-operative regionalism:
      Co-operative regionalism is based on controlled co-operation between regional entities intended to curb competition between them, safeguard comparable minimum standards of living and provide mutual financial aid in case of need. This model does not therefore make for a complete levelling out of standards of living or a standardisation of state structures in the various tiers of government and allows for “restricted” competition between the tiers of government within the limits set by the constitution. The degree of differentiation depends partly on the rules on majorities in legislative procedures (i.e. whether a unanimous or a majority vote is required) and partly on the institutionalisation of co-operation and consultation structures at state level.

      227. It goes without saying that constitutional reality and the practice of organising relations between regional entities in the member states hardly ever fit a standard model. Very often, they can be classed as a mixture of different models. The Congress might therefore try to create the preconditions for defining the scope of a concept of “regional self-government”, around which regional units would be free to build their models of regionalism and gear them to the particular national needs. A concept of this type would also make it possible to ensure greater coherence with key EU policies, especially with EU regional policy. The Commission has, after all, proposed to found EU regional policy on three main objectives – cohesion, competitiveness and co-operation.

      6.4.3 Links between the extent of regional self-government and economic and financial prospects

      228. We must also try to clarify the connections between a country’s level of regional self-government and its economic performance, and the connections between regions’ legal status and their economic performance.

      229. For EU Member states we can use the European Union databases. The European Commission has recently published a third progress report on cohesioncxxx. The diagram below shows the regional disparities in Member states in terms of GDP between the most successful and the least successful regions in a country. At first sight, it is not possible to see whether regions in Member states with a high level of regional self-government are more successful than others.


      230. Differences are very small in Germany, Greece and the Netherlands regardless of the status of the regions in those Member states.

      231. However, it is worth examining more closely the EU Commission’s third report on economic and social cohesion of February 2004cxxxiand comparing the main regional indicators, such as GDP per capita and the trend of GDP over time.

      232. The table below shows that, in 2003, five of the ten regions with the highest GDP enjoyed self-governing status, which was not the case for any of the ten regions with the lowest GDP.

      Regional per capita GDP in the EU25 in 2003
      (in PPS, EU25 = 100)

      The ten highest The ten lowest


      Source: Eurostat – Press release 63/2006, 18 May 2006

      233. It may be concluded that the development of regional self-government makes economic sense. The effects of the European Union’s cohesion policy appear to show that there is indeed a correlation between the degree of regional self-government and economic prosperity. Although EU figures do not demonstrate such a link, a number of examples back up this theory. Certain regions enjoying special self-governing status greatly exceed the national average. This is particularly marked in the case of the Åland islands in Finland, the Valle d’Aosta and Bolzano regions (NUTS II) in Italy, Madeira in Portugal and most of the Scottish regions cxxxii.

      234. The British government has adopted a similar approach, comparing the GDP of some British regions with the performance of central European regions. As far as tax revenue is concerned, it is difficult to be sure whether regions enjoying a greater degree of self-government have a higher level of revenue than other types of regions. As a rule, only federal states produce figures broken down by region. Moreover, the question is a complex one requiring careful thought. Even if a significant share of a region’s tax revenue is transferred to central government, national spending (and European spending in EU member states) within that region must also be taken into account. In many cases, the net effect on the region is positive – a surpluscxxxiii.

      235. Although it is not yet possible to extrapolate from these conclusions, states could take such economic findings into account by establishing pilot regions that enjoy powers capable of boosting the economy and the labour market. Greater autonomy in setting rules particularly in product and labour markets on regional level may help to increase productivity and thus create positive welfare effects cxxxiv.

      236. On the other hand, consideration must also be given to the political implications of such a move. Should economically powerful regions consolidate their institutional position within the state, or even increase their autonomy, there is a risk that the gap between regional entities will widen, possibly so far as to become irreversible, even if instruments for political, structural and financial equalisation are available to the central government. In addition, “rich” regions demand greater state investment within their boundaries in order to meet the infrastructure needs resulting from their economic prosperitycxxxv. It is advisable, therefore, to combine a symmetrical or asymmetrical increase in regional entities’ powers with horizontal and vertical equalisation schemes to reinforce institutions and legal guaranteescxxxvi.

      237. In the next stage – articulating the Congress’s political stance on strengthening the role of regional authorities – these various developments, which all in all are fairly diverse in terms of the basis for regional self-government and particularly their timeframe, should therefore be grouped together country by country in relation to more general aspects:

      a) identifying the main types of developments on the basis of three regional democracy models focusing on competitiveness, solidarity and co-operative consultation respectively;
      b) identifying the relationship between strengthening of the regional level and economic and fiscal development (growth);
      c) analysing differences in the performance of regional units according to their legal status;
      d) assessing regionalisation trends: is the focus on strengthening decentralising forces or the opposite?
      e) identifying, with a view to a comparative assessment, ideas about regionalisation that have been transferred between member states.

      6.4.4 A coherent action plan to promote regional democracy

      238. In view of the fundamental obstacles and the misgivings of certain member states about a legal instrument on regional self-government, only a mixed approach appears capable of revitalising the discussion on the legal bases of regional self-government. It seems that a legal instrument can be adopted only after a process of reflection and persuasion. Consideration should be given to at least the following aspects:

      a) Enhancing inter-institutional co-operation
      The Congress could step up inter-institutional co-operation at the Council of Europe, particularly with the Parliamentary Assembly (Puig report expected in 2006cxxxvii) and also with DG I of the Secretariat as well as with the Committee of the Regions of th EU. In particular, I refer to point 6 of the final recommendations of the 2005 Juncker report “Council of Europe – European Union: The same aim for the European continent.»

      b) Taking advantage of the monitoring carried out within the Congress
      The Congress possesses considerable experience in the area of monitoring regional and local self-government. Use should be made of the overall experience of the Congress's rapporteurs, who have recently prepared reports on member states where regional self-government reforms are in progress.

      c) Mobilising the regions on behalf of the draft Charter
      The regions (notably those with legislative power) must join forces through the medium of Congress members with a view to making the necessary representations to their respective governments on behalf of adopting a legal instrument on regional self-government. The Congress could organise an exchange of views by the members at its Plenary session.

      d) Stepping up the political dialogue with national players
      Despite the various regional lobbying campaigns prior to the Helsinki ministerial conference, the Congress should make use of the time before the Valencia conference to hold talks with the ministers responsible for regional self-government in the member states. The Congress could concentrate on the following:

      e) Clarifying the advantages
      First, it would be a good idea to clarify the advantages of strengthening regional self-government in the following sectors: functioning of local and regional democracy, transparency of political processes, effectiveness, economic performance, subsidiarity and adaptation to international economic requirements.

      f) Allaying fears
      As some of the misgivings are due to fears of losing influence on the part of national elites, it is recommended that it be shown how consultation between the central and regional levels operates in practice in highly federalised or regionalised member states. This would particularly include co-operation instruments and the expanded prospects for the central level. Experience in such countries shows that co-operation and consultation processes are sometimes complicated and lengthy. However, both national and regional administrations have more scope for action because the two levels are obliged to respect national and territorial cohesion in their actions.

      g) Adapting legal instruments to member states’ needs in order to react to regional complexity
      The Congress’s draft Charter of Regional Self-Government possesses great legal flexibility, allowing adaptation to member states' different needs. We must nevertheless study - in particular on the basis of the Helsinki criteria - other flexibility formulas for reacting to member states' requirements.

      7. Conclusions

      6.1 General aspects

      239. "There is little doubt that distributing power in a decentralised fashion turns freedom of expression to account, releases creativity and creates greater prosperity. Historical periods characterised by small state units (the Italian Renaissance around 1500 or the German classical period around 1800) produced many geniuses, remarkable scientific advances and an upsurge of growth for the world."cxxxviii

      240. This comment prompted by the current state of the reform of German federalism at the beginning of 2006 shows quite clearly both the complexity and the opportunities in this area. At both CDLR and Congress level, important work on developing European regionalism is in progress.

      241. Given that governments are there to serve the individual and not the other way round, and that the very structure of power must comply with this principle in order to enjoy enduring legitimacy, regionalisation and democracy are clearly two sides of the same coin. This approach also appears to play an important part in the British government’s regionalisation policy:

      Q16 Dr Pugh: “The Deputy Prime Minister, in a splendid statement to this Committee, said, ‘What I do not like, and inevitably it is happening more and more, is regional decisions being taken which are less and less accountable.’ He then went on to say, ‘I belong to the school that believes there should be democratic accountability.’ Obviously, he would prefer regional government in one form or another. What plans though has the Department to make such regional government as we have at the moment more accountable to the stakeholders and communities that they allegedly serve?”cxxxix

      242. Bringing institutions closer to the community is therefore not merely a question of subsidiarity: ensuring that the people who will suffer the consequences of decisions or benefit from them are involved in those decisions is the very essence of democratic progress. A vehicle for history, experience, specific projects, neighbourly relations and a sense of belonging, the region is a level still capable of arousing political emotions that can help to consolidate democracy by interesting and involving the citizen in public affairs.

      243. However, the terms of reference are different. The CDLR is concentrating on preparing "a substantial report on developments in regional self-government across member states, identifying in particular innovations and any issues common to a number of states", to be communicated to the Valencia conference. The CDLR are will certainly concentrate on the following question:

      ○What reforms with an impact on decentralisation or regional self-government are in progress in mainly centralised countries and in mainly decentralised or federal countries?

      244. The Congress's terms of reference are broader, targeting the following objectives in particular:

      a) drafting of a political report which will stimulate discussion on the main lines of European regionalism and which can represent an input of the Congress to the preparation of the Valencia conference
      b) identification of considerations justifying the necessity of a binding legal instrument of the Council of Europe in the field of regional self-government.

      245. If it is to promote the development of local and regional democracy in Europe, the Congress therefore cannot confine itself to describing it. The principal items in the terms of reference:

      a) to clarify the main lines of European regionalism
      b) to identify considerations justifying the necessity of a binding legal instrument
      c) to provide input to the Valencia conference

      call for a broader approach.

      246. Consequently, in order to carry out the Congress's terms of reference to the full, it appears useful to consider the conclusions of the Budapest conference on regional self-government, particularly paragraph 7 of the Preamble:

      "(…) the importance of regional self-government and the fact that it can represent an enrichment for democratic societies, can help address new challenges of good democratic governance and, depending on circumstances, can respond to the need to deal with public affairs as close to the citizen as possible" -

      a description that stresses the values and future prospects of regional self-government rather than a static description of the current state.

i Art. 2 of Statutory Resolution (2000) 1 relating to the Congress of Local and Regional Authorities of Europe (adopted by the Committee of Ministers on 15 March 2000 at the 702nd meeting of the Ministers’ Deputies)1 :

      Article 2

      “1. The CLRAE shall be a consultative body the aims of which shall be:
      a. to ensure the participation of local and regional authorities in the implementation of the ideal of European unity, as defined in Article 1 of the Statute of the Council of Europe, as well as their representation and active involvement in the Council of Europe’s work;
      b. to submit proposals to the Committee of Ministers in order to promote local and regional democracy;
      c. to promote co-operation between local and regional authorities;
      d. to maintain, within the sphere of its responsibilities, contact with international organisations as part of the general external relations policy of the Council of Europe;
      e. to work in close co-operation, on the one hand with the national, democratic associations of local and regional authorities, and on the other hand with the European organisations representing local and regional authorities of the member states of the Council of Europe.

      2. The Committee of Ministers and the Parliamentary Assembly shall consult the CLRAE on issues which are likely to affect the responsibilities and essential interests of the local and/or regional authorities which the CLRAE represents.

      3. The Congress shall prepare on a regular basis country-by-country reports on the situation of local and regional democracy in all member states and in states which have applied to join the Council of Europe, and shall ensure, in particular, that the principles of the European Charter of Local Self-Government are implemented.

      4. Recommendations and opinions of the CLRAE shall be sent as appropriate to the Parliamentary Assembly and/or the Committee of Ministers. Resolutions and other adopted texts which do not entail possible action by the Assembly and/or the Committee of Ministers shall be transmitted to them for their information.”

ii Ministers’ Deputies, document CM(2005)80 final of 17 May 2005.

      Action Plan:
      “3. Strengthening democracy, good governance and the rule of law in member states
      We will strive for our common goal of promoting democracy and good governance of the highest quality, nationally, regionally and locally for all our citizens and pursue our ongoing fight against all forms of totalitarianism.”

iii Declaration of the Budapest ministerial conference (24 and 25 February 2005) on delivering good local and regional governance:

      “II.3 (…) We invite the Congress to promote by all means the dissemination of, easy access to and awareness of the acquis and information base in the field of local and regional democracy as well as to make use of it in the context of its monitoring of the implementation of the European Charter of Local Self-Government.”

iv CPR/INST (12) 3.

v 926th meeting, 11 May 2005, item 10.1 - 14th session of the Conference of European Ministers responsible for Local and Regional Government (Budapest, 24 and 25 February 2005), report by the Secretary General (CM (2005) 45).

vi See document CDLR (2006) 8 of 24 April 2006. This memorandum by the CDLR secretariat contains replies from 16 member countries: Albania, Belgium, Bulgaria, Croatia, the Czech Republic, Finland, Italy, Latvia, Malta, Norway, Portugal, Romania, the Slovak Republic, Switzerland, “the former Yugoslav Republic of Macedonia” and the United Kingdom. An updated version to be released in autumn 2006 will also include replies from Denmark, Sweden, Spain, Austria and France.

vii Nicolas Levrat, L’Europe et ses collectivités territoriales, p.85ff., Peter Lang Publishing Group, Brussels, Bern, Berlin, Frankfurt am Main, New York, Oxford, Vienna, 2005. 304pp. ISBN 90-5201-174; Gamper, Die Regionen mit Gesetzgebungshoheit, 2004, p.68ff.

viii Community Charter for Regionalisation, OJ EC C 326/296 of 19.12.1988.

ix Jean-Pierre Paulet, Les régions à l’heure de la mondialisation, Armand Colin, 1998.

x See note 7.

xi This was the approach adopted by the Helsinki ministerial conference: Conference of European Ministers responsible for Local and Regional Authorities, 13th session, Helsinki, 27 and 28 June 2002, doc. MCL-13 (2002) 4.

xii Source: Schubert, Klaus/ Klein, Martina, Das Politiklexikon. 3., aktualisierte Auflage Bonn: Dietz 2003.

xiii See Article 3 of the 1997 draft European Charter of Regional Self-Government.

xiv III.A 1.2 of the "Core concepts and common principles".

xv Federal Constitution of the Swiss Confederation of 18 April 1999 (as at 31 January 2006).

      “Article 3 Cantons
      The cantons are sovereign insofar as their sovereignty is not limited by the Federal Constitution; they shall exercise all rights which are not transferred by the Confederation.”

xvi Basic Law of the Federal Republic of Germany, Article 20.1: “The Federal Republic of Germany is a democratic and social federal state.”

xvii I would like to thank the members of the Group of Independent Experts on the European Charter of Local Self-Government: Ms Anna Gamper (Austria), Mr Jacques Bouvier (Belgium), Mr Zvonomir Lauc (Croatia), Ms Vineke Vinten (Denmark), Mr Olli Mäenpää (Finland), Mr Jean-Marie Woehrling (France), Mr David Losabaridze (Georgia), Mr Mauro Volpi (Italy), Mr Edvins Vanags (Latvia), Mr António Rebordão Montalvo (Portugal), Mr Corneliu-Liviu Popescu (Romania), Mr Chris Himsworth (United Kingdom), Mr Milan Bucek (Slovakia) and Mr Ruşen Keleş (Turkey) for their help with the country-by-country analysis.

xviii See details appended.

xix Verfassungsreform: Besonderer Ausschuss des Nationalrates beendet Arbeit (Bericht des Österreich-Konvents einhellig zur Kenntnis genommen) Parlamentskorrespondenz/02/04.07.2006/ Nr. 646.

xx See, for example, DOC 51 2547/001

      Belgian House of Representatives, 4th session of the 51st legislative period, 2005-2006
      Motion for a resolution of 14 June 2006 concerning the defederalisation of federal scientific and cultural institutions (tabled by Mr Ortwin Depoortere).

      On 4 May 2006, Mr Bert Anciaux, Flemish Minister of Culture, stated that he was familiar with this issue and wished to take action in this area: “I would like the Flemish Govenrment to prepare a paper on revision of the Special Act on Institutional Reforms. At the very least, this will give rise to balanced consultation and a decision-making procedure. I would also like to consider, in the light of the 2007 negotiations, which powers and responsibilities could be federalised. I am thinking in particular of federal or bicultural institutions in this connection. I firmly believe that some federal cultural institutions will be transferred to the communities.”

xxi See details appended.

xxii

      Under Article 133 of the Croatian Constitution (as amended by the Act of 9 November 2000), the units of local self-government are municipalities and towns. Their areas are determined by law. The law may provide for other units of local self-government.
      The unit of regional self-government is the comitat (county). The counties’ extent is determined by law. The city of Zagreb is a unit of regional self-government. Large towns in the Republic of Croatia may be defined as counties by law.

xxiii Under Section 6 of the Local and Regional Self-Government Act, Narodne Novine 33/2001, the county is an entity enjoying regional autonomy. Its boundaries enclose a natural, historical, economic and social unit. It exercises regional powers.

      In particular, regions are responsible for education, health, town and country planning, economic development, transport and highways and the planning and development of networks in the aforementioned sectors.

xxiv See details appended.

xxv Ministry of the Interior and Health, Reform of Local Authorities, December 2005;

      Congress Recommendation 164 (2005)1 on local and regional democracy in Denmark: debated and adopted by the Congress on 2 June 2005, 3rd sitting (see doc. CG (12) 8, draft recommendation presented by K. Smith (United Kingdom, L, SOC), K. Behr (Germany, R, PPE/DC) and R. Ruocco (Italy, R, NI), rapporteurs).
      See details appended hereto.

xxvi See details appended.

xxvii Constitution of the French Republic of 4 October 1958 as amended by constitutional statutes 2005-204 of 1 March 2005 amending Part XV of the Constitution and 2005-205 of 1 March 2005 pertaining to the Charter for the Environment.

      “Art. 72. - The territorial units of the Republic shall be the communes, the départements, the regions, the special-status areas and the overseas territories to which Article 74 applies. Any other territorial unit shall be established by statute, in appropriate cases in place of one or more units provided for by this paragraph.

      Territorial units may take decisions in all matters that are within powers that can best be exercised at their level.

      In the manner provided by statute, these units shall be self-governing through elected councils and have power to make regulations.

      In the manner provided by the institutional Act, where the essential conditions for the exercise of public liberties or of a right secured by the Constitution are not affected, territorial units or associations thereof may, where provision is made by statute or regulation, as the case may be, derogate on an experimental basis for limited purposes and duration from provisions laid down by statute or regulation governing the exercise of their powers.

      No territorial unit may exercise authority over another. However, where the exercise of a power requires the combined action of several territorial units, one of those units or one of their associations may be authorised by statute to organise their joint action.

      In the territorial units of the Republic the state representative, representing each of the Members of the Government, shall be responsible for national interests, administrative supervision and observance of the law.”

xxviii It follows that the presence of French regions, in the EU for example, and their powers with regard to use of the European structural funds are somewhat limited. See:

      “Alsace stands apart in managing its European funds itself”, Le Monde, 27.04.06, 2.06pm: “Alsace is the only region that decides for itself how the European funds it receives are to be used. It was granted this special dispensation, on a trial basis, on 1 January 2003 by the government of Jean-Pierre Raffarin, who had made decentralisation one of the main planks in his political platform.

      In presenting the new programming rules for European funding on 6 March, Dominique de Villepin announced that the experiment would be extended for the 2007-2013 period, which covers the next European budget period. During that period Alsace will receive 178 million euros from the European Regional Development Fund (ERDF) and the European Social Fund (ESF).”

xxix See details appended.

xxx Congress Recommendation 157 (2004)1 on local and regional democracy in Georgia: debated and adopted by the Standing Committee of the Congress on 4 November 2004 (see document CG (10) 22 rev., draft recommendation presented by I. Micallef (Malta, L, PPE/DC) and D. Shakespeare (United Kingdom, R, PPE/DC), rapporteurs).

      As regards the regional level, the recommendation simply mentions the obstacles to further regionalisation resulting from the failure to resolve the situation in the regions of Adjara, South Ossetia and Abkhazia.

xxxi See details appended.

xxxii Act amending the Basic Law, Bundesrats-Drucksache 462/06 of 7 July 2006, Resolution of the Bundesrat of 7 July 2006, Federalism Reform Act, Bundesrats-Drucksache 463/06 of 7 July 2006.

xxxiii See details appended.

xxxiv See details in document CDLR (2006) 8 of 24 April 2006, p.149ff.

xxxv See details appended and the report by Kathryn Smith and Miljenco Doric, “Local and Regional Democracy in Portugal”, doc. CG (10) 5 rev., Part II of 25 May 2003, Section VII, “Compliance with the Principles of the European Charter of Local Self-Government: Regions” (comments on administrative regions in para. 101).

xxxvi According to document CDLR (2006) 8 of 24 April 2006, p.190.

xxxvii See details appended.

xxxviii Constitution of Romania of 29 October 2003:

      “Article 3
      1) The territory of Romania is inalienable.
      2) The frontiers of the country are sanctioned by an organic law, under observance of the principles and other generally recognised regulations of international law.
      3) The territory is organised administratively into communes, towns and counties. Some towns are declared municipalities, according to the provisions of the law.
      4) No foreign populations may be displaced or colonised in the territory of the Romanian state.

      Article 120
      1) The public administration in territorial-administrative units shall be based on the principles of decentralisation, local autonomy, and deconcentration of public services.
      2) In the territorial-administrative units where citizens belonging to a national minority have a significant weight, provision shall be made for the oral and written use of that national minority's language in the relations with the local public administration authorities and the decentralised public services, under the terms stipulated by the organic law.

      Article 121
      1) The public administration authorities, by which local autonomy in communes and towns is implemented, shall be the Local Councils and Mayors elected, in accordance with the law.
      2) The local Councils and Mayors shall act as autonomous administrative authorities and manage public affairs in communes and towns, in accordance with the law.
      3) Authorities under paragraph (1) may also be set up in the territorial-administrative subdivisions of municipalities.

      Article 122
      1) The County Council is the public administration authority coordinating the activity of commune and town councils, with a view to carrying out the public services of county interest.
      2) The County Council shall be elected and shall function in accordance with the law.

      Article 123
      1) The Government shall appoint a Prefect in each county and in the Bucharest Municipality.
      2) The Prefect is the representative of the Government at a local level and shall direct the decentralised public services of ministries and other bodies of the central public administration in the territorial-administrative units.
      3) The powers of the Prefect shall be established by an organic law.
      4) Among the Prefects, on the one hand, the Local Councils and the Mayors, as well as the county councils and their presidents, on the other hand, there are no subordination relationships.
      5) The Prefect may challenge, in the administrative court, an act of the County Council, of a Local Council, or of a Mayor, in case he deems it unlawful. The act thus challenged shall be suspended de jure.” 

xxxix See document CDLR (2006) 8, p.212.

xl Congress Recommendation 121 (2002)1 on local and regional democracy in Spain: debated and adopted by the Standing Committee of the Congress on 14 November 2002 (see document CG (9) 22, draft recommendation presented by Mr J. Olbrycht and Mr A. Lloyd, rapporteurs).

xli See Boletín official de las Cortes generales, Congreso de los diputados, Serie B, 21.10.2005, Núm 210-1.

      Text adopted: Diari Oficial de la Generalitat de Catalunya, Any 30 / 2a època Dijous, 20 de juliol de 2006 DOGC número 4680, DECRET 306/2006, de 20 de juliol, pel qual es dóna publicitat a la Llei orgànica 6/2006, de 19 de juliol, de reforma de l’Estatut d’autonomia de Catalunya.

      “Llei orgànica 6/2006, de 19 de juliol, de reforma de l’Estatut d’autonomia de Catalunya.
      Artículo 1. Cataluña.
      Cataluña, como nacionalidad, ejerce su autogobierno constituida en Comunidad Autónoma de acuerdo con la Constitución y con el presente Estatuto, que es su norma institucional básica.
      Artículo 3. Marco político.
      1. Las relaciones de la Generalitat con el Estado se fundamentan en el principio de la lealtad institucional
      mutua y se rigen por el principio general según el cual la Generalitat es Estado, por el principio de autonomía, por el de bilateralidad y también por el de multilateralidad.
      2. Cataluña tiene en el Estado español y en la Unión Europea su espacio político y geográfico de referencia e incorpora los valores, los principios y las obligaciones que derivan del hecho de formar parte de los mismos.”

xlii See Congress Recommendation 176 (2005)1 on local and regional democracy in Turkey: debated and adopted by the Standing Committee of the Congress on 8 November 2005 (see document CG (12) 25, draft recommendation presented by A. Knape (Sweden, L, PPE/DC) and H.-U. Stöckling (Switzerland, R, ILDG), rapporteurs) ad document CG (12) 25 Part II.

xliii See details appended.

xliv http://www.parliament.uk/parliamentary_committees/odpm/reggovtinq.cfm

xlv Report on Regional Democracy in Hungary - CPR (9) 2 Part II rapporteur: Jan OLBRYCHT (Poland) and

xlvi Congress Recommendation 180 (2005)1 on the state of local finances in the Netherlands: debated and approved by the Chamber of Local Authorities on 8 November 2005, and adopted by the Standing Committee of the Congress on 9 November 2005 (see doc. CPL (12) 8, draft recommendation presented by K. Smith (United Kingdom, L, SOC), rapporteur).

xlvii Recommendation 120 (2002)1 on local and regional democracy in Poland: debated and adopted by the Standing Committee of the Congress on 14 November 2002 (see document CG (9) 21, draft recommendation presented by Ms K. Smith and Mr M. Doric, rapporteurs).

      See also Article 164 of the Polish Constitution of 2 April 1997:
      1. The commune (gmina) shall be the basic unit of local self-government.
      2. Other units of regional and/or local self-government shall be specified by statute.
      3. The commune shall perform all tasks of local self-government not reserved to other units of local self-government.

xlviii Congress Recommendation 143 (2004)1 on local and regional democracy in the Russian Federation: debated and adopted by the Congress on 26 May 2004, 2nd sitting (see doc CG (11) 5, draft recommendation presented by G. Rhodio (Italy, L, PPE/DC) and H. U. Stöckling (Switzerland, R, ILDG), rapporteurs); see also Rhodio, Stöckling, explanatory memorandum of 4 April 2004, doc. CG (11) 5, Part II, Chapter I: Regional Democracy; Parliamentary Assembly of the Council of Europe, Doc. 10568 of 3 June 2005, “Honouring of obligations and commitments by the Russian Federation”, Local and regional democracy, par. 105-108.

xlix Catalonia adopted a new self-governing status by referendum in June 2006, but voter turnout was fairly low (approximately 50%).

l Establishment of a "globalisation" fund which supports regions in economic or labour market difficulty because of globalisation.

      See Council of the European Union, Brussels, 19 December 2005 (20. 12), document 15915/05.
      12. The European Council agrees that a Globalisation Adjustment Fund will be established designed to provide additional support for workers made redundant as a result of major structural changes in world trade patterns, to assist them with their re-training and job search efforts. Activation of the Fund will be subject to strict criteria relating to the scale of economic dislocation and its impact on local, regional or national economies, which the European Council invites the Council to establish on the basis of a proposal from the Commission. The maximum amount of expenditure from the Fund shall be up to €500 million per year. No specific financial provision for the Fund will be made in the Financial Perspectives. Instead it should be financed through underspends against the budget ceilings established in these conclusions (defined in commitments terms) and/or from funds which are de-committed.

li Conference of European Ministers responsible for Local and Regional Authorities, 13th session, Helsinki, 27-28 June 2002, (MCL-13 (2002)8 final), Helsinki Declaration on regional self-government:


      “11. The Council of Europe should recognise and promote common principles on regional self-government in a European legal instrument which takes into account member states' experience.”

lii See, for example, the new Article 27 (2 )of the Basic Law of the Federal Republic of Germany. The Federation previously had the right to legislate only “when and insofar as the achievement of equivalent living conditions on Federal territory … makes Federal legislative regulations necessary …” This requirement has now been removed in favour of a good ten or so material powers. The Federation’s legislative power is consequently no longer subject to any restrictions, thereby strengthening the central government.

      Another example comes from the United Kingdom. Councillor Dick Cole, leader of the Party for Cornwall, put forward the following arguments during the hearings on the future of regional government in England:
      “20. Rather than being about decentralisation, this is centralisation within a government region. To take planning as an example, the structure plans of the County Councils are now being phased out, with less local input into the policies that the Councils themselves are meant to follow.

      21. The experiences of Cornwall are particularly chastening in terms of this south-west regionalisation. Running in tandem with the governmental changes, there has been a considerable centralisation of a range of public bodies and organisations out of Cornwall to elsewhere in the South West, undermining the local economy and local communities. Recent examples include the centralisation of the National Health Service and the local emergency services.”

      Is there a Future for Regional Government?, Draft Volume of Written Evidence, vol.1, p.76.
      Memorandum by Councillor Dick Cole, Leader of Mebyon Kernow – Party for Cornwall (RG 20).

liii Memorandum by Mr Anthony Lenton (RG 03), HoC Committee on the Office of the Deputy Prime Minister, Is there a Future for Regional Government?, Draft Volume of Written Evidence, vol.1, p.5.

liv Memorandum by The Campaign for the English Regions (CFER) (RG 28)

lv ODPM: ibid.

lvi See, for example, the effects of the removal of quotas on textile imports. This has had a considerable impact on regional economies and job markets: “Between 2001 and 2004 production in the EU fell 15% in the textile sector and 25% in the clothing sector. In the first half of 2005, just after the quotas were lifted, production dropped 10%.” (Frankfurter Allgemeine Zeitung, 25 July 2006, p.9)

lvii See the European Commission’s presentation of measures designed to make EU industry more competitive:

      Verheugen, SPEECH/06/403, “Competitiveness: the answer to restructuring and competition

      We have established a common European policy for growth and employment. We must now put this policy into action at European, national and regional level – everywhere. Otherwise we will time and time again find ourselves at our wits’ end in the face of further remnants of our social model in the form of closed factories and relocated research laboratories – yes, this has already started too.”

lviii See Bruegel paper from 20 September 2006 “The EU and the Governance of Globalisation”

      Alan Ahearne, Jean Pisani-Ferry, André Sapir and Nicolas Véron

lix

      Some fear “uniformisation through European integration”: Thomas König, Aus Politik und Zeitgeschichte, Heft 36/2005 of 5 September 2005.

lx See Le Monde, 21 July 2006:

      “Polish Prime Minister vouches for the protection of national identity and morality.
      Fight against corruption, protection of “national identity (against) outside attacks”, vindication of the traditional family: the new Polish Prime Minister, Jaroslaw Kaczynski, hammered home his beliefs in a speech to Parliament lasting more than an hour on Wednesday 19 July.”

lxi Jochen Hippler (Hrsg.), Nation-Building – ein sinnvolles Instrument der Konfliktbearbeitung?, Dietz Verlag (Bonn), Reihe Eine Welt der Stiftung Entwicklung und Frieden, December 2003.

      See also: J. Buchsteiner, Bescheidenere Ziele “Nation building” ist Mode. Aber großen Erfolg hat es nicht“, Frankfurter Allgemeine Zeitung, 18.07.2006, p.1.

lxii “30% of the length of Europe’s political borders has been established in the last fifteen years” – Foucher, “La perspective d’adhésion à l’UE peut être un facteur de fragmentation”, Le Monde, 7 June 2006.

lxiii See note 63: case of Spain.

lxiv Draft Congress Charter, Preamble:

      “Affirming that recognition of regional self-government entails loyalty towards the state to which the regions belong, with due regard to its sovereignty and territorial integrity;”

lxv Through the EU’s new instrument, for example: Proposal for a Regulation of the European Parliament and of the Council establishing a European grouping of cross-border cooperation (EGCC) COM (2004) 496, 2004/0168/COD.

      See also European Parliament: FINAL A6-0227/2006 OF 26.6.2006
      Recommendation for second reading on the Council common position for adopting the Regulation of the European Parliament and of the Council establishing a European grouping of cross-border cooperation (EGCC) (9062/2/2006 – C6-0189/2006 – 2004/0168(COD))

      Committee on Regional Development, rapporteur: Jan Olbrycht.

lxvi Memorandum by Nicholas Capp (RG 05)

      Is there a Future for Regional Government? Draft Volume of Written Evidence Vol.1 page 7.

lxvii The representative of the British Chamber of Commerce (BCC) put forward a number of positive arguments in favour of an increased role for regions:

      Ms Moore-Bick: I think the issue really was around the nature of the proposals for the North East Regional Assembly. From the business point of view, it was seen as likely to be very costly to businesses, an additional layer of government, as Sally was saying, not getting rid of anything but adding another tier of government. Indeed, it would have taken some of the power up from the local level rather than being devolution from the central level. We would not see regional government as being a sort of dead duck, if you like, it has still got a vital role to play; it is just how you go about doing that. I think there is a danger at the moment that we may get regional government by the back door. Regional Development Agencies are being given more responsibilities, particularly over delivery, rather than just an initial, strategic role, so there is real concern.”

lxviii Memorandum by the Office of the Deputy Prime Minister (RG 32)

lxix In particular, see Chapter II, Part II, “La recherche d’un Etat territorial plus coherent”, of the French National Assembly’s report on the territorial balance of powers, 22 February 2006, doc. n° 2881.

lxx Albert Boadella (director), in an interview in the Tageszeitung newspaper of 17 June 2006, mentions a tricky issue: “Thirty years ago, we had few administrative departments in Catalonia. There were only central government departments. Few citizens were dependent on the government. These days, one million Catalans out of a population of seven million rely directly or indirectly on the autonomous government for their livelihood. This has completely changed our region. Citizens protest less and less against the government, because they are dependent on the authorities in one way or another.”

lxxi MCL-13 (2002) 4, Conference of European Ministers responsible for Local and Regional Authorities, 13th session, Helsinki, 27-28 June 2002.

lxxii http://www.communities.gov.uk/index.asp?id=1139487

      The United Kingdom government mentions the following aims in its White Paper of summer 2002, “Your Region – Your Choice: Revitalising the English Regions”:
      - Decision-making must be closer to the people.
      - Effectiveness and efficiency must be improved by tailoring solutions to a region’s specific needs;
      - Regions must receive special responsibility for economic development, leisure, regional planning, housing, transport, vocational training and culture.

lxxiii Speech on decentralisation in France given by J.P. Raffarin in Rouen on 28 February 2003. The French government intends to take the following ideas as a starting point for the reforms:

      :
      - Citizens feel increasingly unsettled because of the consequences of globalisation. They need nearness, transparency and visible democratic structures. Local and regional authorities in particular, together with their elected representatives, can perform the task of transforming state policy into living policy close to the citizens.

      - Closeness to the citizens ensures efficiency and sympathetic treatment using the available financial resources. Since public financial resources are limited, they must be used in the best possible way. The greatest success in the best cases is therefore obtained with administrative authorities that have an accurate knowledge of local problems, particularly in the areas of general education and vocational training, welfare assistance and health policy, as well as in land-use planning and structural economic policy.

      - Democracy needs eye-catching successes on the part of the legitimate representatives, particularly at local and regional level. It is therefore necessary to have a clear and transparent allocation of competences as a precondition for the distribution of responsibilities.

      - Finally, communities are responsible for the economic development of their units. Central government cannot be responsible for success or failure in all parts of the territory.

lxxiv See, for example, the interview with Romano Prodi in the Austrian newspaper Der Standard of 19 February 2006 concerning the state of relations between Austria and Italy regarding South Tyrol:

      “Romano Prodi: (…) The inhabitants of South Tyrol probably wanted to feel more secure now that Italy is becoming a federation. It is clear that large and economically powerful regions like Lombardy will not be prepared in the long run to accept the financial advantages enjoyed by Sicily, South Tyrol and Trentino. The Italian federal model is contradictory. But it seems obvious to me it is obvious that the cake must be divided out afresh.”

lxxv

      See press release by the BDI (Federation representing German industry) of 17 February 2006 N° 17/06:
      “Mr von Wartenberg said he was disappointed that the Federal Government was still dependent on complex co-ordination with the Länder as regard’s Germany’s EU representation: “Instead, I would have liked the Federal Government’s voice to be strengthened in Brussels by giving it greater independence vis-à-vis the Länder. The grand coalition and the Länder should have shown greater boldness in this respect, for, in the final analysis, the EU has a decisive influence on German economic legislation.””

lxxvi Danuta Hübner, member of the European Commission, Speech/06/360.

lxxvii Speech by Ms. Danuta Hübner, Member of the European Commission responsible for Regional Policy

      at the European Policy Center Breakfast Policy Briefing on “Narrowing the divide: regional policy as an instrument for boosting Europe’s competitiveness?” Brussels, 18 July 2006
      http://ec.europa.eu/commission_barroso/hubner/speeches/pdf/epc_18_07_2006.pdf

lxxviii See, for example, the reproaches by the German Federal Minister for Food, Agriculture and Consumer Protection, Mr Seehofer, levelled at the head of the Landkreis (district) of Rügen (Der Spiegel, 27 February 2006) in connection with local measures against bird flu, which he considered inadequate:

      “The Federal Minister for Consumer Protection, Horst Seehofer (CSU), has argued in favour of increased powers for the Federation and the Länder regarding the control of animal epidemics. “I would like a debate on whether t our system is archaic, at a time when the city districts and Landkreise are having to fight global infections. Increased central powers are essential for taking important decisions. We shall cease to be in control if we fail to examine this issue and combat the situation at a global level.”

lxxix The NZZ (16 June 2006) has outlined the background to Catalonia’s new self-governing status; see also Die Zeit of 24 February 2006, commentary by Stefanie Müller on hidden agendas in connection with E.ON’s takeover bid for Endesa:

      “Catalonia has been fighting since the end of the dictatorship for greater independence from Madrid. Since the Socialist governments came to power in the capital and Barcelona, calls for independence have become increasingly strong. Mr Zapatero, who was initially receptive to these claims, quickly noted that the demands of his political friends were becoming increasingly insolent. During the negotiations on a new autonomous status, the head of the Catalan government, Pascal Maragall, pressed Mr Zapatero, for example, to grant it separate nationality and fiscal autonomy. (…)
      His popularity dropped significantly in surveys. However, in the end he negotiated skilfully and used the takeover bid for Endesa, for which Natural Gas needed the government’s agreement, to exert pressure on Margall. In order to obtain its approval, Margall withdrew some of his demands concerning regional self-government.”

lxxx See above, speech on decentralisation in France given by J.P. Raffarin in Rouen on 28 February 2003.

      - Communities are responsible for the economic development of their units. Central government cannot be responsible for success or failure in all parts of the territory.

lxxxi See Article 72 (2) of the German Basic Law:

      “2) In this field, the Federation has the right to legislate when and insofar as the achievement of equivalent living conditions on Federal territory or the safeguard of legal or economic unity in the interests of the state as a whole makes Federal legislative regulations necessary.”

      This article was amended as part of the 2006 reform of German federalism; see Appendix on Germany.

lxxxii For more information, see Recommendation 83 (2000)1 on evaluation of regionalisation in central Europe, especially in Poland: debated and approved by the Chamber of Regions on 23 May 2000, and adopted by the Standing Committee of the Congress on 25 May 2000 (see doc. CPR (7) 3, draft recommendation presented by Mr. L. Kieres, rapporteur).

lxxxiii G.H., Frankfurter Allgemeine Zeitung of 24 July 2006, article on the careers of German chancellors since 1949: “In a federal state, the “provincial princes” have the best chance of becoming head of state.”

lxxxiv : CONGRESS / REC 34 (1997) E / 5 June 1997

      Recommendation 34 of the Congress of Local and Regional Authorities on the draft European Charter of Regional Self-Government

lxxxv European Charter of Local Self-Government, Strasbourg, 15 October 1985 Council of Europe: European Treaty Series - No 122

lxxxvi Article 3 - Concept of local self-government

      1 Local self-government denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population.
      2 This right shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and which may possess executive organs responsible to them. This provision shall in no way affect recourse to assemblies of citizens, referendums or any other form of direct citizen participation where it is permitted by statute.

lxxxvii Report of 26 October 2005 - CPR/INST (12)3.

lxxxviii The Congress adopted Recommendation 34 (1997) on 5 June 1997. The Parliamentary Assembly supported the draft and adopted Recommendation 1349 (1997) on 7 November 1997. The EU Committee of the Regions supported the Congress's draft at its 36th plenary session on 13 December 2000.

lxxxix Der Spiegel, 26 June 2006:

      “The wealthy regions in the north would have put in place high-quality health services. Too bad for the poor regions in the south. The centre-left coalition feared legislative chaos: central government would have set the broad thrust of education policy, including school curricula, while the regions, each acting on its own, would have dealt with organisational matters and decided on the regional component of school curricula.”

xc Der Spiegel, 22 May 2006:

      “There is a great fear that Montenegro will become a stronghold of the Russian mafia, casinos and contraband.”

xci The Economist, 25 May 2006, “Enter Montenegro”.

xcii The Guardian, 7 June 2006, “Catalan Conundrum”.

xciii See Wieland, Frankfurter Allgemeine Zeitung, “Zapatero’s Spain”:

      “A positive interpretation would be that a politically stable country doing well economically can afford to satisfy the many demands of its regions by increasing their autonomy, with the intention of strengthening the country as a whole by drawing on open-handed national solidarity. A less positive interpretation is that Zapatero, with his policy of smiles and concessions, has opened a Pandora’s box that could lead to the internal destabilisation of this EU partner, ever-growing demands from tribalist local nationalists and, in the final analysis, Iberian Balkanisation.”

xciv Noch eine spanische „Nation“ (Encore une „nation“ espagnole)

      Eine Stunde Unterschied: Die Galicier wollen jetzt ihre eigene Uhrzeit / Von Leo Wieland, FAZ du 5.février 2

xcv Helsinki Declaration on regional self-government: Conference of European Ministers responsible for Local and Regional Authorities, 13th session Helsinki, 27-28 June 2002; MCL-13 (2002)8 final.

xcvi See Appendix, Conference of European Ministers responsible for Local and Regional Authorities, 13th session, Helsinki, 27-28 June 2002: Outlines, syntheses and overviews of six models of regional self-government, MCL-13 (2002)4.

xcvii Models of regional self-government:

      Model 1 Regions with the power to enact primary legislation¹, the existence of which is guaranteed by the Constitution/by a Federal Agreement and cannot be questioned against their will
      Model 2 Regions with the power to enact primary legislation¹, the existence of which is not guaranteed by the Constitution/or by a Federal Agreement
      Model 3 Regions with the power to enact legislation, according to the framework (principles, general provisions) established by national legislation, the existence of which is a guaranteed by the Constitution
      Model 4 Regions with the power to adopt laws or other regional legislative acts, according to the framework (principles, general provisions) established by national legislation, the existence of which is not guaranteed by the Constitution
      Model 5 Regions with decision-making power² (without legislative power) and councils directly elected by the population
      Model 6 Regions with decision-making power² (without legislative power) and councils elected by the component local authorities

      ¹ Power of the region to enact primary legislation: the power to enact legislation in designated areas of competence, which is to apply to a region, and which for those areas of competence is of the same legal status as legislation enacted by the national parliament for such (other) areas of competence as are the responsibility of that parliament.

      ² The scope of this decision-making power may vary. It consists in general in implementing national legislative measures.

xcviii Consolidated version of the Treaty instituting the European Community, Official Journal N°C 325 of 24 December 2002.

xcix Article 203

      “The Council shall consist of a representative of each Member state at ministerial level, authorised to commit the government of that Member state.”

c Article 263

      “A committee, hereinafter referred to as ‘the Committee of the Regions’, consisting of representatives of regional and local bodies who either hold a regional or local authority electoral mandate or are politically accountable to an elected assembly, is hereby established with advisory status.”

ci Article 5 (2)

      “In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member states and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.”

cii Declaration n° 3 by Germany, Austria and Belgium on Subsidiarity, appended to the Treaty of Amsterdam, Official Journal N° C 340 of 10 November 1997:

      “It is taken for granted by the German, Austrian and Belgian governments that action by the European Community in accordance with the principle of subsidiarity not only concerns the Member states but also their entities to the extent that they have their own law-making powers conferred on them under national constitutional law.”

ciii Official Journal No C 310 of 16 December 2004.

civ Article I-5 Relations between the Union and the Member states

      1. The Union shall respect the national identities of its Member states, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential state functions, including those for ensuring the territorial integrity of the state, and for maintaining law and order and safeguarding internal security.

      2. Following the principle of loyal co-operation, the Union and the Member states shall, in full mutual respect, assist each other in carrying out tasks which flow from the Constitution.

      The Member states shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Constitution or resulting from the acts of the Institutions of the Union.

      The Member states shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives.

cv Article I-11 Fundamental principles

      1. The limits of Union of competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.

      2. Under the principle of conferral, the Union shall act within the limits of the competences conferred upon it by the Member states in the Constitution to attain the objectives set out in the Constitution. Competences not conferred upon the Union in the Constitution remain with the Member states.

      3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence the Union shall act only if and insofar as the objectives of the intended action cannot be sufficiently achieved by the Member states, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.

      The Union Institutions shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments shall ensure compliance with that principle in accordance with the procedure set out in the Protocol.

      4. Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Constitution.

      The Institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality.

cvi Article 8

      The Court of Justice of the European Union shall have jurisdiction in actions on grounds of infringement of the principle of subsidiarity by a European legislative act, brought in accordance with the rules laid down in Article III-365 of the Constitution by Member states, or notified by them in accordance with their legal order on behalf of their national Parliament or a chamber of it.

      In accordance with the rules laid down in the said Article, the Committee of the Regions may also bring such actions against European legislative acts for the adoption of which the Constitution provides that it be consulted.

cvii Official Journal No L 161 of 26 June 1999, page 0001 - 0042.

cviii Article 8 Complementarity and partnership

      1. Community actions shall complement or contribute to corresponding national operations. They shall be drawn up in close consultation, hereinafter referred to as the "partnership", between the Commission and the Member state, together with the authorities and bodies designated by the Member state within the framework of its national rules and current practices, namely:
      - the regional and local authorities and other competent public authorities,
      - the economic and social partners,
      - any other relevant competent bodies within this framework.

      The partnership shall be conducted in full compliance with the respective institutional, legal and financial powers of each of the partners as defined in the first subparagraph. In designating the most representative partnership at national, regional, local or other level, the Member state shall create a wide and effective association of all the relevant bodies, according to national rules and practice, taking account of the need to promote equality between men and women and sustainable development through the integration of environmental protection and improvement requirements.

      All the designated parties, hereinafter referred to as the "partners", shall be partners pursuing a common goal.

      2. Partnership shall cover the preparation, financing, monitoring and evaluation of assistance. Member states shall ensure the association of the relevant partners at the different stages of programming, taking account of the time limit for each stage.

      3. In application of the principle of subsidiarity, the implementation of assistance shall be the responsibility of the Member states, at the appropriate territorial level according to the arrangements specific to each Member state, and without prejudice to the powers vested in the Commission, notably for implementing the general budget of the European Communities.

      4. Member states shall co-operate with the Commission to ensure that Community Funds are used in accordance with the principles of sound financial management.

      5. Each year, the Commission shall consult the European-level organisations representing the social partners about the structural policy of the Community.

cix Adopted by the European Parliament on 16 February 2006. Report: McGuinness A60023/2006.

cx See para 2.2 of the Annex to Council Decision of 20 February 2006 on Community strategic guidelines for rural development (2006/144/EC, OJ EC L 55/20 of 25 February 2006).

cxi Official Journal of the European Union of 18 February 2005 C 43/26 EN.

cxii See paragraph 10 of Directive 2005/65/EC of the European Parliament and of the Council of 26 October 2005 on enhancing port security, Official Journal of the European Union L 10/29 of 25 November 2005.

cxiii Parliamentary Questions of 12 December 2003 (E3833/03)

      Written question by Robert Bigliardi (UEN) to the Commission
      Subject: Provincial authorities' involvement in the management of EU Structural Funds

      In the context of EU Structural Fund programming, responsibility for the use of Community funds lies with the relevant regional authorities, with the involvement of local authorities - in this instance, at provincial level. In Objective 1 regions, including in Italy, provincial authorities have, under framework agreements concluded with the relevant regional authorities, taken on a significant role in the management of funds available under the Regional Operational Programme (ROP).

      1. Given the above can the Commission state whether the authorities in Objective 1 regions in Italy should in fact provide for the involvement of provincial authorities in the management of ROP funds and whether this might not act as a barrier to the funds being used on schedule as a result of lengthy co-ordination procedures?

      2. Whether the involvement of local authorities in the management of ROP funds (at provincial level) is nominal or real, given that local authorities were not involved in the drafting of the 2000-2006 Community Support Framework?

      Answer given by Mr Barnier on behalf of the Commission

      The Honourable Member's two questions relate to the principle of partnership involvement in the programming and management of assistance (part-financing) from the Community Structural Funds.

      That principle is set out in Article 8 of Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds¹: "Community actions… shall be drawn up in close consultation… between the Commission and the Member state, together with the authorities and bodies designated by the Member state within the framework of its national rules and current practices…” Article 8 also requires Member states to ensure association of the relevant partners at each stage of programming.

      Accordingly, the administrative authorities in charge of Operational Programmes must, if they are to ensure that the partnership principle is correctly and effectively applied, associate the local authorities in partnership if national rules require them to do so or if they consider it advisable to do so. This entails setting appropriate consultation procedures.

      ¹ OJ L 161 of 26 June 1999
      OJ C 782 E of 27 March 2004 (page 315)

cxiv Judgment of the Court of 12 June 1990 – Federal Republic of Germany v. Commission of the European Communities – Agriculture – EAGGF – Disallowance of expenditure – Case C-8/88. Digest of Case-Law 1990 page I-02321.

cxv Levrat, L’Europe et ses Collectivités Territoriales, particularly Chapter III: “La délicate question du statut des collectivités territoriales au sein de l’ordre juridique communautaire”, page 109 and ff.

cxvi “Article 230

      4) Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.”

cxvii See the proposals set out in the Stöckling/Mans/Andreotti report, Safeguards for the fundamental rights of local and regional authorities in the 45 Council of Europe member states under Council of Europe Conventions: the European Charter of Local Self-Government and the draft Convention on Regional Self-Government, CG/Inst (11) 3 and (11)5, 2004, page 10 and ff.

cxviii Strasbourg, 27 April 2005 CG (12)6 Part II.

      12th Session (Strasbourg, 31 May-2 June 2005)
      20th Anniversary of the European Charter of Local Self-Government
      Rapporteur: Birgitta Halvarsson, Sweden

cxix See also the Resolution of the EU’s Committee of the Regions of 21 November 2005: “Guidelines for the application and monitoring of the subsidiarity and proportionality principles”.

cxx Recommendation Rec(2004)1 of the Committee of Ministers to member states on financial and budgetary management at the local and regional levels.

cxxi Recommendation Rec(2004)12 of the Committee of Ministers to member states on the processes of reform of boundaries and/or structure of local and regional authorities.

cxxii Recommendation Rec(2005)2 of the Committee of Ministers to member states on good practices in and reducing obstacles to transfrontier and interterritorial cooperation between territorial communities or authorities.

cxxiii Draft Declaration of the Budapest Ministerial Conference on delivering good local and regional governance: Conference of European Ministers responsible for Local and Regional Government; document MCL-14 (2005)4 rev; 14th session, Budapest, 24-25 February 2005.

cxxiv See in Annex 6: Conclusions of Bristol Ministerial Informal Meeting on Sustainable Communities in Europe

      UK Presidency, Bristol, 6-7 December 2005, Annex 3:
      3. In any context good governance is characterised by the five principles of openness, participation, accountability, effectiveness, and coherence.

cxxv Recommendation 123 (2003)¹ on the perspectives for a third Council of Europe Summit: debated and adopted by the Standing Committee of the Congress on 21 March 2003 (see document CG (9) 25, draft recommendation presented by Mr H. van Staa, rapporteur).

      13. Accordingly situates its activity and essential role within the Organisation as a promoter of local and regional democracy in Europe, in application of the principle of subsidiarity and with a view to fairer and more efficient governance;

      B. The Summit should also be an opportunity for support to be given to the Congress for the continuation and development of its activities to promote local and regional democracy, the main aspects of which are: e. implementation of a new local and regional governance based on transparency, integrity and access to information, as well as application of the subsidiarity principle in the distribution of public responsibilities;.

cxxvi See Appendix 6.

cxxvii Regional self-government denotes "the legal competence and the ability of the largest regional authorities in each Member state to take charge of a large share of public affairs under their own responsibility, in the interest of their populations and in accordance with the principle of subsidiarity".

cxxviii Article 3

      The Union shall be served by a single institutional framework which shall ensure the consistency and the continuity of the activities carried out in order to attain its objectives while respecting and building upon the acquis communautaire.

cxxix Staatssekretär Hartenbach dans la séance du Bundestag du 11.février 2004 (Stenografischer Bericht

      90. Sitzung, point 2: Questions orales (Drucksache 15/2460)
      „Ein solidarischer Föderalismus bedeutet, dass wir alle füreinander einstehen.“ (Féderalisme solidaire signifie, que nous portons garant de nous mutuellement)

cxxx Report COM (2005) 192 of 17 May 2005: Third progress report on cohesion: Towards a new partnership for growth, jobs and cohesion.

cxxxi The Commission proposes a new partnership for cohesion in the enlarged Union, IP/04/232 of 18 February 2004.

cxxxii See Annex to the third report: Main Regional Indicators.

cxxxiii Der Standard of 19 February 2006

      “Approximately 92% of South Tyrol’s tax revenue goes back to Bolzano. If national spending on defence, foreign policy and other heads within the state’s competence is included, the province receives more money than it pays out.”

cxxxiv OECD Economics Department Working Paper 509 “Regulation, competition and productivity convergence” from 12th September 2006

cxxxv See the political analysis of the possible impact of the elections on relations between northern Italy and the central state in the article by Heinz-Joachim Fischer, Frankfurter Allgemeine Zeitung of 27 July 2006, page 8:

      “Milan speech
      Prodi: There is a northern problem in Italy too

      (…) Speeches by Formigoni and other northern leaders give the impression that for Lombardy and Veneto, cohesion with the rest of Italy, the “unity of the nation” so often invoked, is nothing but a hindrance and an inconvenience. (…) this situation would be tolerable only if there were a commitment on the part of the Italian government and real progress on the major infrastructure projects to which the north aspires. Every traffic jam around Milan or Venice – and these are many and dense every day – seems to accuse the Prodi government. North Italians do not find it reassuring to know that they are better off than Sicilians and Neapolitans. It irritates them that Frankfurt, Hamburg and Zurich, with their impeccable infrastructures, still see them as “south Europeans”. Prodi may have more to fear from this northern opposition than from the centre-right political parties and their parliamentary minority (…)”.

cxxxvi In this connection, see St.Galler Tagblatt of 21 June 2006, quoting new Italian MP Antonio Razzi: “Before turning Italy into a federation, consideration must be given to horizontal compensation between regions. A system that developed over several centuries in Switzerland should not be introduced in Italy as part of a contingency operation.”

cxxxvii Parliamentary Assembly, Doc. 10844 of 3rd March 2006, Proposed recommendation on regionalisation in Europe

cxxxviii Rainer Hank, Frankfurter Allgemeine Sonntagszeitung 26 February 2006 page 10.

cxxxix Uncorrected transcript of oral evidence to be published as HC 977-i

      House of Commons, minutes of evidence, taken before Office of the Deputy Prime Minister: Housing, Planning, Local Government and the Regions Committee 
      Is there a Future for Regional Government?
      Monday 13 March 2006, Evidence Heard in Public, Questions 1-124



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